I International conference on restorative justice and victim

FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUT
RESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.
VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )

I INTERNATIONAL CONFERENCE ON RESTORATIVE JUSTICE AND
VICTIM-OFFENDER MEDIATION: THEORETICAL ASPECTS AND
PRACTICAL IMPLICATIONS. 4 and 5 of March. Assembly Hall. Faculty of
Law. Burgos

The First International Conference on Restorative Justice and Victim-offender
mediation was held in Burgos on March, organized by the Victim-offender
Mediation Service in Castilla y León (Burgos) with the collaboration of the
University of Burgos, the city hall and the European forum for Restorative
Justice. This was the first international conference organized in Spain on this
subject. It was very successful and 250 persons from different parts of Spain
and other countries such as Portugal and Mexico attended the Conference.

The goals of this Conference were:

Explain the benefits of Restorative Justice and victim-offender mediation to all
the citizens and let the citizens known that the Victim-offender mediation service
in Castilla y León exists and that they can decide whether they want to solve
their problem through the Service or through the traditional system of justice.

Draw the attention of government to support these Restorative services, as European
the great saving of
governments do. Because at the end the cost is much lower than
time and money involving restorative processes such as
mediation
Trying to draw attention to the legislature so as to regulate Restorative Justice and
victim-offender mediation and establish a set of recommendations and conclusions once the
Congress, is finished which may provide guidance and direction to the legislature in order to
regulate this subjects in the best way

In the opening ceremony attended:

The coordinator of the victim- offender mediation service in Castilla y León (Burgos), Mrs.
Virginia Domingo de la Fuente, read a letter from the President of the European Forum for
Restorative Justice, in which he expressed his support to the organizers of the conference,
briefly he explained the duties of the European forum and he apologized for not being in the
conference, but he said he was in spirit, wishing all the best for this international event. He also
considered the Conference of Burgos, a prelude to the International Conference of the Forum,
which this year was held in Bilbao.
.
The coordinator also apologized to the Hon. President of High Court of Castilla y León,
because although he had expressed his wish to attend he wasn’t able to attend. The same day
in León, the President of the General Council of the judiciary imposed him the medal of Saint
Raimundo of Peñafort. For this reason the High Prosecutor of the Community,
Manuel Martin Granizo, was not able to attend to the Conference.

Finally she also apologized to the voice of the CGPJ, Margarita Uria, who was
absent; we believe that because of scheduling problems, since we are fully
confident that she would have liked to be present at this international event so
successful that brought together 250 people.

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The Delegate of the Goverment in Burgos, Ms Berta Tricio thanked the
invitation of the organizers and highlighting the work that they have been doing for
several years. A totally selfless work, with great effort and enthusiasm that has ensured that
Burgos is a precedent in restorative justice

She also highlighted the commitment of the Ministry of Justice with the
mediation and mentioned the draft law on civil mediation and arbitration, that
although expressly excludes victim-offender mediation, it is a first step towards
a future law in victim-offender mediation.
The Hon. Mayor of Burgos, Juan Carlos Aparicio, reiterated his thanks to the victim-offender
mediation service in Castilla and León (Burgos), for its work and the organization of this
International Congress. Although the Town Council has no direct powers in criminal matters,
from the beginning it has supported and contributed to the Service and the member so as they
can move to international meetings on this subject representing Burgos, Castilla and Leon.

The Rector of the University of Burgos, Alfonso Murillo, was satisfied that the
University had collaborated in organizing this Congress. He also stressed as the
other authorities the great work that has been doing this Service and in particular the
coordinator. He highlighted the importance of this kind of activities especially for a city like
Burgos, who aspires to become European Capital of Culture in 2016. He also expressed his
desire to hold successive editions of this conference and raised the need to incorporate notions
of restorative justice in the curriculum and concluded by stating opened the Congress
The inaugural presentation was given by the Prosecution in charge of support
and helps the victims, Ms Maria Boado Olabarrieta, with the title "the
prosecution and victim-offender mediation." Her talk was very interesting
because it offered a vision of what the traditional justice system offers to
victims, what fails and why restorative justice and mediation can be a way to
improve the justice system
Some people ask her whether she is particularly in favour of victim-offender mediation; she
rightly said she was not against anything that can improve the system of justice. Also she spoke
about the agreement that the Prosecution’s office has with the victim-offender mediation service
in Castilla y León (Burgos) and about the annual report of this service she said that most victims
do not want economic or material repair only symbolic.
The next talk was a great pleasure for everyone because we had the
opportunity to hear one of the "fathers of Restorative Justice" in Europe, Martin
Wright with his speech "law, justice and the suitability for its purpose: Towards a
restorative response to crime. "In his presentation he established the advantages of
Restorative Justice against the current retributive justice and how restorative practices should
be present in all aspects of our daily lives.
Then we have Brian Steels, a researcher at Murdoch University (Australia), with
his presentation, "Restorative Justice in an unjust world: transforming or more of
the same," He told us about his work with indigenous groups in Australia and
from philosophical point of view he tried to explain that it is necessary the
collaboration of all for Restorative Justice involves truly transformative justice

The following talking was Mr, Miguel Angel Iglesias Rio, criminal law professor at the
University of Burgos, with the title "the victim and repair the damage, bases of victim-offender
mediation." He offered us his vision as a professor of criminal law about which would be the
requirements and conditions to start and conduct a victim-offender mediation process

Then we had the pleasure of listening to Per Andersen, national director of the
Norwegian mediation centres. We could hear how it has been the development of

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Restorative Justice and Mediation in Norway since the 70's until now, we knew how to articulate
further Mediation Services in Norway, which is the law and how to assist all agencies involved

To end the day we have a very interesting panel disc ussion about the” Way to
Santiago and its potential in victim-offender mediation”. Of the participants, stressed Mr Joaquin
Gimenez, judge of the Supreme Court Room 2, Mr Pablo Arribas, leading expert of the Way,
members of the association of St. William of Arnotegui, a member of the Institute of Social
Rehabilitation of Juvenile Offenders in Madrid and Mrs. Virginia Domingo, coordinator of the
victim-offender mediation of Castilla y León (Burgos) and researcher in the area of restorative
justice and mediation.

The following day began with a very interesting presentation of the National
Police Commissioner of Burgos, Mr Javier Peña. He illustrated to us about police
work, and why it is necessary in his opinion the victim-offender mediation and what are the lines
of collaboration he has with the victim-offender mediation Service of Castilla y León (Burgos).

The next presentation was devoted to whether it is good or not the prohibition of
doing mediation in domestic violence involving the procedural law professor at
the University of Salamanca, Mr Fernando Martin- Diz and Mrs. Virginia
Domingo, coordinator of the victim-offender Mediation Service of Castilla y
León (Burgos), and in spite of contrary ideas, one of the most important findings
of both shows that if there was a law on mediation in criminal cases, this
framework could allow certain nuances and doing an exhaustive selection of
cases, certain minor cases could be handled through victim-offender mediation
or any other tool of Restorative Justice .

And to close the Congress we had the great pleasure of having the Chief judge of the
Courts of Burgos, and Juvenile Judge Ms Blanca Isabel Subiñas, which brought us into the
world of juvenile court and victim-offender mediation in this area, and in this case mediation is
providing in the law of minors.

The Congress concluded with a significant presence of people from different
places in Spain and abroad, with a commitment to continuity in successive
editions and the possible collaboration in the future of the Portugu ese Ministry of
Justice and its cabinet dispute resolution what can also help us to strengthen the foundations for
a true implementation of Restorative Justice and victim-offender Mediation in Spain and
Portugal is a good example of our European orbit since it is close and they have a law of victim-
offender mediation.

We also had the opportunity to hear the communications of a civil law professor
at the University of Valencia, Ms Carmen Lopez-Beltran de Heredia and another
of Philosophy of Law, at University of Burgos, Mrs Nuria Martín Belloso.

FINAL REPORT:
ABOUT RESTORATIVE JUSTICE IN GENERAL:
1. Restorative Justice is a philosophy about how to approach the justice and
criminal law, which focuses on giving prominence to those affected directly and indirectly by the
offense. Part of the premise that damage has been caused and what are the actions required to
repair this damage. To repair this damage are invited to participate the parties, and thus can
achieve the result of repairing and restoring social peace. Although it may seem a new

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paradigm, the fact is that for many years it has been established in places like the U.S. and
Canada.

2. Restorative Justice has a number of tools that facilitate the reintegration of the victim and the
offender into society from which they separated for the crime, leading to overcome their "role of
victim and offender”
Properly maintained RJ meets the needs of the victim to be heard, repaired and
feel safe again and the offender’s needs to apologize and amend as far as
possible the damage caused. The offender has the chance to reconcile with the
community, and get some degree of empathy for the feelings that are generated
in others

3. Although Restorative Justice puts its emphasis on direct and indirect victims of crime and
their needs, also promotes awareness and accountability of the offender for the act committed.
Offenders experience the impact their actions have had on human beings, thus they are
favoured in more social behaviour, non-recurrence and facilitating their reintegration into the
community, thus fulfilling its own constitutional mandates a social and democratic state of right
in Spain, that are listed among other items in the article 25 of the constitution, which talks about
the role of rehabilitation and reintegration of penalties

4. Restorative Justice contributes to a more mature, responsible and safer society because
the beneficial effects of generating awareness and self-responsibility in offenders, affects all of
us because we will have less risk of new crimes by offenders who have participated in a
restorative process. It is clear that the reduction in recidivism helps the whole community in
general because we not only have a sense of greater security but as indirect and potential
victims of all offenses, we can recover the peace making "social peace."
It seeks to promote understanding and social harmony through the "healing" of
the victim, offender and some form of community.

5. In Spain, we should allow the entry of the principle of opportunity in adults for
certain issues and thus provide an alternative outlet to trial through a restorative
process. This should be explained to citizens so they can see that with these
processes is to overcome the widespread perception that the criminal is "soft"
and unjust also long and costly, precisely because through Restorative Justice
is given the role that corresponds to the victims

6. It is necessary to provide training for experts in restorative justice so as restorative processes
can be implemented with all the guarantees ensuring that exceptions to the principle of legality
does not imply an abdication of the State in its judicial functions . But quite the opposite as it will
facilitate the reintegration of the offender to comply with the mandates of our constitution and a
social and democratic state of law. For the training of these experts, it would be good
to include training in restorative practices in schools and universities so as the
next generation can be formed in culture of dialogue and communication to
resolve their own conflicts. Thus in the future to speak about Restorative Justice will not
sound strange to them, and all the problems they will find in their daily lives may contribute to
their personal development.
And that conflict is inherent to life and we must provide all individuals the skills
necessary to cope.

7. Although Restorative Justice started as a reaction to the criminal act, it
should be extended the concept in all areas of life, also acting preventively. This
contributes to creating social capital and strengthen communities and that is a

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different way of relating. According to Martin Wright, Restorative practices are a way to allow all
interested parties together to agree how to how to act in the future giving weight to the needs of
each one.
And Restorative Justice is the application of restorative practices to rectify or
repair the damage caused each other, especially when the harmful action is
contrary to law. Today, Restorative Justice is something more, a philosophy
which aims to find the wisdom to know the natural solution to the conflicts of
everyday life through language as an essential tool. Restorative Justice is not
only a victim-offender restorative meeting, but defined in terms of dialogue,
participation in the transformation of relations of the members of society.
Restorative justice is essential values of responsibility and dialogue. As a
culture, education: preventing violent behaviour and criminal acts while punitive
attitudes change, the concept of "passive victim" and the offender with "no
Chance to redeem his/her criminal acts”.

8. The work of researchers is essential for the preparation of studies and analysis of the
different aspects of Restorative Justice to show legislators and administrations, the advantages
and benefits of Restorative Justice as an important step for people to accept and know more
about Restorative Justice and that RJ will help them if they need these restorative processes. In
fact all the publicity and promotion such as conferences, workshops, brochures....
It is important to reach out to society, to inform them and prevent misconceptions that
might adversely affect them. We need to know how to "sell Restorative Justice" and it seems
that in Spain, the legislature is not encouraged to regulate Restorative Justice and mediation for
fear of causing alarm among the citizens, hence that all publicity and promotion of RJ to society
at large is very important.

We must also take into account that generally people who have never been
victims are more punitive and contrary to generally restorative programs
however, people who have been victims demand a number of things that they
can not find an adequate response in the traditional justice system and instead
with Restorative Programs they can find a more effective and successful
solution.

9. Any Restorative Justice program is inspired by a series of values or pillars of
which include:

Compensation is to apologize, the victim is very happy when he/she receives
the apologies from the offender. Offender promises to return what he/she has
stolen, get a job…

Reintegration, reentry of the person in the life of the community as a productive member and
this occurs when people become good citizens. Both victim and offender may need help, they
should be treated with dignity, they should provide moral support, material, spiritual and even
legal.

Meeting, the victim and the offender have a meeting or more (it will assess whether or not a
face to face meeting, if it is not appropriate the mediator will act as a bridge between) in the joint
meetings, everyone can tell what they saw, offender tells what he thought when he committed
the crime, not just the legal side, it can be analyze how to go out of conflict, there is much
excitement in this game, knowing the truth of voice of the offender and the victim

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Participation
The recognition of the crime and / or misdemeanour is very important,
offenders are required to speak, as well as victims, and they should be involved
to know what they are feeling. Victim and offender together can address
possible solutions that are not covered, they can analyze the compensation,
reintegration… the needs and interests of each party are seen, even this would help other
victims. The important thing is that we think of the victims as never before.

10. It should be promoted the inclusion of restorative programs at different
process:

In the investigation stage (pre-trial) is currently governed by the principle of
presumption of innocence, so they must meet the following requirements :

The accused must be aware of the offense he has committed and its
consequences.
Participation is voluntary
Offender must be informed by his/her lawyer the consequences of the
agreement for the purposes of legal benefits under the penal code

At this time it is valued as a mitiga ting provided in the Article 21.5 of the Spanish penal
code

In the post-sentencing stage and prior to execution:
It can serve to give the suspension of imprisonment.
It can also be used to replace the penalty

In the execution phase:
Restorative Justice can be used to obtain the third degree of prisoners
To grant for parole
Seek pardon

11. The criminal law for minors in Spain already provides some mechanisms that were
tentatively based on the philosophy of Restorative Justice, based on the participation of the
victim and so as to achieve a greater satisfaction of the interest violated due to the criminal act.
This law provides criminal formulas such as mediation and conciliation as well as allowing the
entry of the principle of opportunity in order to complete the process if it is reached a satisfactory
agreement. It is clear the wisdom of the legislature because if Restorative Justice aims to
educate and sensitize the offender to ensure that he has a new life without crime, this re-
socializing effect will occur more strongly in young people whose personality is not yet fully
formed. And is that the educational impact on young people can and is very important.
This trend should be incorporated in adults, as we said especially for certain cases.

12. Restorative Justice contrary to what critics say is not a privatization of
Justice.
On the contrary, they are rediscovering the victim. As García-Pablos says victim
must be discovered as a fundamental and essential next to the offender, legal
practitioners and collaborating with the effectiveness of the criminal justice
system. Restorative Justice should lead the remorse of the offender, restorative justice is not
exempt from public criticism or is outside the courts, as the first public reproach is exercised by
the direct and / or indirect victim, (the person who has suffered the damaging effects of crime is

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able to express their rejection, the damage she/ he has suffered and what are the needs of the
victim to overcome his /her role.

For many offenders the fact of facing the victim is a harder punishment than any
other kind of penalty. Moreover, legal operators are at all times aware that it has started a
restorative process and that if it is not successfully it will return to normal procedures.

13. The tools to implement and put in practice Restorative justice includes

Family conferencing, restorative conferencing or community group,

There is a meeting with the victim, offender, and families of both, friends and
neighbours and in order to manage conflict and resolve it taking care of the
needs of the victim, offender and community

Peace circles or sentencing circles:

It is a process designed to develop consensus among community members,
victims, defenders of the victim, the offender, police, members of the
prosecution ... of an appropriate sentencing plan that address the concerns of
all stakeholders

Victim-offender mediation

It is a process in which the victim and offender meet face to face (if possible) in
the presence of an impartial and neutral mediator. Both talk about the incident,
the victim can ask questions and receive information and express his/her feelings.
The victims get a sense of closure regarding the incident to release "their anger
and other emotions”. The offender has the opportunity to take responsibility, reduce harmful
revenge and make restitution.

14. It seems appropriate to conclude by saying, that the concept of Restorative
Justice is not new on the contrary, the idea of justice on "giving each his own"
relates directly to the concept of Restorative Justice. In ancient times, this
concept existed since the crime was conceived as an injury to the individual and
thus for example the code of Hammurabi established as a penalty to crimes
against property restitution of the stolen. This concept is based on indigenous
traditions of Australia, New Zealand, USA and Canada where they have been
practicing certain forms of restorative justice based on reparation and healing
the "wounds" through discussion and interaction between victim, offender and
sometimes the community.

ABOUT RESTORATIVE JUSTICE IN SPAIN: WHERE TO
WALK…?

1. It would be desirable that the legislature can draft a law on Restorative Justice, at least in
adults, to facilitate the work of those, like us that in the past several years we have been
working in this field. This would help legal practitioners to give more support to these programs
because they would have a legal basis on which to rely. We consider it is important to be a
special law providing for Restorative Justice in the broad sense paying special attention to one

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of the most used tool in our European environment: the victim-offender mediation. Reduce the
law only to mediation in criminal cases; exclude other tools that in some cases may be more
complete and efficient for including in the process more members of the community and the
indirect victims of crime.

2. The law should contain training plans for experts in Restorative Justice and because of the
qualities and characteristics of the parties involved in restorative processes should be specific
and concrete. We should not try to reduce a concept as broad as the Restorative Justice to
victim-offender Mediation, because in order to understand what is victim-offender mediation
and what is their specialties that make it radically different from other mediations we must start
knowing what is Restorative Justice its principles and values. Precisely because of these
special characteristics, people engaged in this work should do it so exclusively and completely
independent of their profession of origin, although the professionals (lawyer, psychologist ...) in
their daily work can use restorative techniques to help people. The Restorative Justice expert
when acting as such should be mediator or facilitator, no lawyer or psychologist.... To make a
good training plan, it is important to include in the universities the subject of restorative justice, it
should be considered as a complementary part in certain degrees, while recognizing that
Restorative Justice has its own peculiarities and is composed of an entire philosophical
paradigm that makes it more than a philosophy, is more a way of coping with life. So victim-
offender mediation as a tool of this Restorative Justice is not mediation as in other areas such
as family or community, it has certain peculiarities that require specialized personal training

3. Restorative Justice Services should be offered free to all citizens according to
models such as Mexican or Norwegian. Thus all individuals in the same conditions and
without infringing the principle of equality could decide if their problem is managed by the
traditional process or through restorative justice. Therefore, the administration will give
economic support to these services that help the administration of justice, with the professionals
who work in these services an element of the justice system with judges, prosecutors, lawyers
and others. And not to mislead the citizens it should be clear that the mediator or facilitator is an
independent profession that has nothing to do with the role of the lawyer, or psychologist or
social worker for example.

4. There are certain aspects that should be translated into law, an important
issue would be the introduction of the legislation, and the effectiveness would have
the record of agreements signed by the parties. Would it be binding?

In this sense if we are talking about misdemeanours, could parties report the same facts in
future? What happen if the agreement is not fulfilled? If there would be a minimum so that the
agreement had effectiveness, what would happen if the parties pull back, which would link in
case of recurrence of the problem or conflict? In response to some of these issues, we must say
that as Norwegian law should raise the possibility that criminal mediation or restorative process
that is chosen does not work or does not comply with the agreements and then in this case
should promote and enable a new victim-offender mediation or restorative process This is
very important because the results of victim-offender mediation or restorative process
may be not good at all the first time, because of a excusable mistake of mediator, through no
fault of the mediator and the parties or unwillingness of either party. For the sake of the principle
of minimum intervention of criminal law before turning to the ordinary way, it would be given a
second chance to the parties.
Another issue that may be relevant is that once the parties have reached an
agreement, they should be given a period to repent of the agreement and
release the restorative process in which they participated. After the deadline, the
agreement will acquire full effect. This period would be important so as not to depend on the
personal whim of any party who may want to use the restorative process for their own benefit
We should also talk about whether there would be some limits in repairing the
damage, formulas to promote symbolic reparation or activities in case the
offender don’t have enough economic potential And especially we should pay

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particular attention to the principle of legality, allowing the opportunity in certain cases (which
might establish the law) if the parties reach an agreement, the case could be closed. We also
should establish what kind of follow-up should be performed to check whether the agreement is
fulfilled. It should be structured how it is going to be regulating and how we want to do it.

Another important issue would be how agreements should be in victim-offender
mediation and what features should be gathered in a generic way and so we
can say that it would be appropriate:

Resolve the immediate conflict
Cover all issues that have arisen between the parties
Prevent the occurrence of conflicts in the future (about a commitment to the
offender from re-offending)
Ensure that the agreement is realistic and that satisfies all parties.
Set out what each party should do, when and how to do it (specify quantities,
dates and actions)
Avoid non-quantifiable terms as “reasonable, common…”
Include contingency plans if the agreement is not fulfilled…
Usually agreement involves the offender commitments with respect to the victim. But there are
some cases in which the role of offender and victim are not as defined and in these cases the
agreement may contain mutual commitments and not necessarily and exclusively to repair but
of future behaviour, ways of action for the future.
It is not necessary, nor advisable that agreements include explicit recognition of the facts by
the offender, so as not to violate the principle of presumption of innocence in case offender
refuses to participate in the restorative process. These agreements should be specific, realistic,
clear and simple and balanced
All questions that have been mentioned and many others must be specified and
then translate them into a law without loopholes, but without falling into the risk
to regulate everything in such detail that we end by doing an ineffective law.

5. These Restorative Justice services should be in collaboration with
prosecutors, police, judges and other entities to assist victims and offenders.
With regard to what restorative model, the most common in our environment is victim-offender
mediation, but in certain crimes such as those in which there is no specific victim but we are all
potential victims (eg traffic safety) might allow other restorative models that include the
participation of community members, police ... In any case, the values and principles of
Restorative Justice will inform the criminal proceedings.
6. In line with what we have been telling it could be regulated if in certain cases the restorative
process could be done with a surrogate victim, for example if the victim does not want to
participate directly but authorizes another person to act in the whole process on their behalf.
Similarly, it could be facilitated a restorative encounter with a victim and a surrogate offender,
namely the offender is not the one that directly caused the damage to that concrete victim but
with another offender who committed another crime of the same characteristics Why would
this be desirable? Because if an offender wants to take responsibility and apologize to show
his repentance, he/she should have the opportunity as part of their reintegration and
rehabilitation process and if the victim does not want to take part, she/he can send someone in
his place or even meet with another victim of a similar crime committed by another offender. In
this sense if a victim needs to express what he/she feels, finds answers, to channel their
"anger", and heals his wounds, to overcome their role as victim and reintegrates into the
community we will need to enable channels of contact with other offenders who
have committed similar crimes (particularly if the offender does not want to participate
in the restorative process) to which she/he has suffered.

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7. It should be assessed and eliminated the prohibition of mediation in domestic
violence, allowing in certain minor matters, being channelled through a
restorative process which may well be victim-offender mediation or maybe
someone else as restorative conferences

ABOUT THE VICTIM-OFFENDER MEDIATION IN SPAIN From a
practical perspective

1. Victim-offender mediation is the most known in our European environment
and the more applied but now increasingly we tend to explore the use of other
tools such as restorative conferencing. In fact, this Congress has been considered for
their interesting topics and the massive support the anteroom of the Congress of the European
Forum for Restorative Justice that this year will be held in Bilbao, which among other issues
discusses the implementation of restorative conferencing in Europe.

2. Victim-offender mediation can be defined as a free and voluntary process of
dialogue and communication between the victim and offender led by an impartial mediator in
order to reach satisfactory repair agreements and freely accepted by the parties.

3. It is a voluntary, free, confidential process, alternative or complementary to the traditional
justice system, an impartial third party intervention; saving time and effort as it involves
speeding up the process, informal but with structure and no rights are lost (the parties always
have the open judicial proceedings and may withdraw at any time of the victim-offender
mediation)

4. Although there is no express regulation in adults, only in minors, there are
initiatives in some parts of Spain as the city of Burgos, Castilla y León.
Experiences like that of Burgos, whose service began struggling to develop victim-offender
mediation and restorative justice in 2004 and they actually started in 2006 show that victim-
offender mediation works and it is well received by the citizens. It is good to continue promoting
this institution to the community and government, to bring it closer to the whole society in
general so as that government will be able to see that benefits of Restorative Justice are more
than the economic costs.

5. There is an unequal situation with victim-offender Mediation Services in Spain, and so there
are services in some places and not in others. And with financial support in some places, while
others don’t receive economic support. This successful experience of Burgos, is due to the
support received from various institutions among which we highlight: the prosecution of both
Castilla and Leon, as the de Burgos and the General Don Manuel Martín-Granizo, as our
maximum support, Jose Luis Concepcion (President of the High Court of Castilla y León), the
General Council of the Judiciary and its chairman Don Carlos Divar, the chief judge of the city of
Burgos, Blanca Isabel Subiñas, the Commissioner of Police, Don Javier Peña and the mayor of
Burgos, Juan Carlos Aparicio, who has worked to facilitate among other things, our trips to the
Congress of the European Forum for Restorative Justice, as representatives of Castilla y Leon
and Burgos.

6. This collaboration with the administration and legal practitioners is vital for the
proper conduct of the Services. To avoid reticence of these people, arising because
victim-offender mediation is not regulated, is essential the researcher work to substantiate the
principles of victim-offender mediation in what already exists in our law as mitigating of repair
the damage in the criminal code and the purposes of rehabilitation and reintegration of
sentences in our constitution and other articles in the penal code and criminal procedure law.

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7. Victim-offender mediation has its own characteristics that came from the philosophy
underlying these practices, the Restorative Justice. Also these unique characteristics are
derived from two parties that are not equal, a victim and an offender who take part in the
process. This makes that training in this area should be specific and specialized. It is essential
that all training plans can be informed by the Restorative Justice. And for the future to be more
stable and safer for citizens and for those who work every day in this area, it would be desirable
as mentioned above that a law can provide Restorative Justice and the most used tool in our
European environment, victim-offender mediation

ABOUT VICTIM-OFFENDER MEDIATION AND RESTORATIVE
JUSTICE IN CASES OF DOMESTIC VIOLENCE

1. The prohibition of mediation in domestic violence in Spain raises serious
doubts and we should value its change or correction. This prohibition in our
Spanish law raises a number of problems: the first is what can we understand
when the law says mediation is not allow in this type of crimes (violence against
women).
It is not feasible that legislator was talking about victim-offender mediation
because we can not ban something that it is not actually under the law and
there is no explicit reference about this institution.
Perhaps legislator was talking about family mediation, and in this case this
prohibition is accurate and clear since here we don’t have two parties with
oppositing interests in a family problem, but we have one offender and one
victim.
And if legislator had tried to prohibit victim-offender mediation, this applies only
to a tool of Restorative Justice but leaves open the door for other instruments to
implement the philosophy of Restorative justice as circles or conferencing.

2. At that time this ban was considered successful by the proliferation of such
violence and ignorance of what restorative justice entails. On one hand the
excessive growth of domestic violence crimes and the social alarm forced the
legislator to more punitive rules so as to leave no doubts that this abuse is not
justified under any circumstance and it has the blame of society.
On the other hand, it is mistaken believed that if we allow Restorative Justice, it
is about to privatize this kind of crimes, and we are going to eliminate the social
blame of such crimes and these crimes has a premium for their special
circumstances. The feminist struggle is guided to recognize domestic violence
as serious, public and punishable by law beyond the private sphere. Restorative
processes to some extent can be considered a private matter, but they are not
free of social criticism and they are not outside courts.

3. However despite the specific law on domestic violence in which among other
things, it tightened the penalties for both physical and psychological abuse
especially of men over women and created a network support and assistance to
women including publicity in media that seeks to instil in society a sense of
responsibility to deal with situations of abuse and to generates a feeling of
solidarity and opposition to any kind of abuse to women, the fact is that the
issues have not been reduced and prisons have a high percentage of abusers.
This leads us to ask ourselves if these offenders will be held accountable for
their actions or they will leave prisons with “more anger” and “vengeance”. This

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question arises from the observation of what usually happens in many cases
where offenders go to traditional system of justice because in many times the
system does not respond properly especially if we focus on the victims of these
crimes( usually stills more vulnerable than other victims) Why does this
happen?

o Violent man does not have to explain or explore his aggressive
behaviour; he will deny it, trying to prove his innocence. The trial
will create incentives to reinforce his denial of crime. The offender
tends to justify their aggression.

o As trial gets them into trouble, offenders may increase the pressure
and violence against women. As a result future aggressions
sometimes will happen and they will remain secret.

o Criminal processes sometimes silenced victims, the frightened
woman under pressure from the partner will refuse to give
evidence in court or even deny the allegation and offender can be
absolved and violence will continue. Besides victims in criminal
process are only witnesses.

4. As the Prosecutor Mrs María Boado, in charge of Help and Support victims
said: “it is so obvious that we can’t be against something that will improve our
traditional system of justice. Based on this successful premise (and it is
applicable not only to domestic violence) we can establish that Restorative
Justice in these type of crimes can be very important and a useful tool. Why?

o In Restorative Justice domestic violence crime is seen as a
violation not only of the rule but also of individuals and their
relationships. In crimes of domestic violence, restorative justice
focuses on the past, present and future with offenders taking
responsibility for their abusing actions. It is concerned with
protection of victims and accountability of offenders. While
traditional justice is concerned only by the imposition of penalty to
punish and prevent, restorative justice uses restitution as way to
repair as much as possible the damage caused to victim and
through this restorative attitude raise awareness about the harm
the offender has caused.

o With Restorative Justice, the victim is given the opportunity to
“heal” wounds and we protect them, giving the community the
chance to speak too, as an indirect victim of these crimes (in
certain tools, not all).

The offender is encouraged to take responsibility for his actions
and it is given support to them to change their behaviour.

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The offender accountability is based on his understanding of the
impact of his action and his will to take part in a process which will
examine his values standards and he will take action to change his
behaviour. Victim has voice in the accountability of the offender.

o Traditional justice focuses exclusively on his past behaviour;
Restorative justice focuses on the harmful consequences of the
abusive behaviour, giving him the opportunity to take responsibility
for the violence committed and is able to repent. The “stigma” of
crime may go away by changing the offender’s behaviour.

o In domestic violence, the concept of restore, typical of restorative
justice is not to restore woman in her situation before violence,
because the risk would be evident if the person is returned to the
previous state of violence. In domestic violence, restore can be
considered as the creation or recreation significant relationships of
equality.

5. Once we have seen why restorative justice can help in certain domestic
violence crimes, what is the most appropriate tool to implement restorative
justice?
We used to think almost exclusively in mediation in Spain. During the
presentation of the teacher Fernando Martin Diz, we were aware of the
existence of a great number of problems, that make the implementation of
victim-offender mediation in Spain in general and especially in domestic
violence very difficult.

It is clear that the main problem is that there is no explicit regulation on this
subject and this coupled with the prevalence of the principle of mandatory
prosecution leave a short space of action. Mediation is also criticized by the
imbalance of power that would prevent a terrified victim to meet with offender in
victim-offender mediation and to feel safe enough to discuss and reach an
agreement. However Mrs Virginia Domingo said in her presentation that there
are mechanisms to balance as far as possible this imbalance, explaining that of
course, not all cases would be suitable for victim-offender mediation.
We must also be assumed that victim-offender mediation is radically different
from other mediations in other areas such as family, community…
In other mediations, parties are contenders and work on the assumption that
they both contribute to a greater or lesser extent the conflict and they both must
reach an agreement. In these cases mediation focuses on finding solutions
rather than see the impact that the conflict has had on the lives of the parties.
In Victim –offender mediation, a party has committed a crime (offender) and
usually he has admitted it or he has been caught “red handed” and the other
party has suffered a crime (victim) and so in victim-offender mediation is
therefore an explicit imbalance of power.

While other mediations can be considered “driven solutions”, victim-offender
mediation is above all “driven dialogue” with the emphasis on healing the victim,
offender accountability and reparation of the damage. So if victim-offender

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mediation is different from another kind of mediations, of course more so in
domestic violence. All of these explanations are because although in Spain we
tend to forget, victim-offender mediation is supported and based on a
philosophy, a paradigm about justice which focuses essentially on the victim,
this is restorative justice. Virginia Domingo said that to overcome the obstacle of
the imbalance of power in domestic violence, the individual work of mediator
with offender and victim is especially “hard” and important and it may expand
over time until mediator can achieve the best possible balance and the victim
can feel safe enough to participate in a joint meeting.
In relation to non existence of explicit rules, Fernando Martin Diz is absolutely
right but that’s why there are services such as the victim-offender mediation
service in Castilla y León( Burgos) , engaged with its work, that not only
provides the service and offers the public, the benefits of this system to
encourage the legislator to regulate it and it also organizes conferences to bring
attention about what restorative justice is and provides a number of appropriate
variables for a future regulation so as to achieve and effective and successful
law.

6. There are other restorative practices such as conferencing or circles. These
practices according to Virginia Domingo in her presentation can be even more
beneficial than victim-offender mediation since they include members of
community, family and friends of each other. This is good for several reasons:
 First it is an excellent way to educate the community in order to
understand the scope of these crimes, so they no longer justify
them and they can cease to be “dumb” witness. We can forget that
education is prevention and taking part in these conferencing or
circles can be a way of learning the damage, effects and the
impact that these crimes cause and also the reproach of society,
so that these can act as a deterrent effect potential future abusers.

 Victim ceases to feel “alone” and “guilty” for the behaviour of
violent man. She realizes that she has the understanding not only
of her immediate environment but also the society in general. She
feels the empathy of community thus she realizes that she has
done the right thing.

 It generates cooperation between the participants a sense of
togetherness.

 With these restorative tools, favouring the inclusion of members of
the community, restorative justice is never a private institution as
the crime generates criticism from the general public (society is
represented in the restorative process) and they all are directed
involved in responding to crime. This support the assumption of
responsibility of offenders because it is no longer a third party fully
unconnected to crime ( judge) and far away in authority and
empathy, who is going to punish him, they are going to be normal
persons like him who will criticize his attitude and will try to show
offender that his behaviour is wrong.

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7. As a conclusion to the issue of domestic violence and victim-offender
mediation and restorative justice we have to say that harsher sentences to
offenders has not worked as a deterrent effect, generating even more “anger”.
That’s why we should combine the law with restorative practices so as to
promote the awareness of society and the immediate environment of the victim
and also the awareness and possible change of offender who wants to cope
with his violent behaviour and not to repeat it. Any restorative tool can be
beneficial, taking into account as a main premise the security of victim.
Legislator is not encouraged to the regulation of Restorative Justice in Spain,
because of fear of causing social alarm. We need to give time to society and
correct and adequate information so that the “chip” of tougher penalties could
change as it has been shown that more punishment is no accompanied by safer
victims and less offenders. Certainly we focus on punishing offenders but we
forget the victims’ real needs and their feeling and perceptions.
Restorative Justice and victim-offender mediation will not be the “panacea” for
all cases but an important step for the “change” of some offenders and the
progress in the prevention of many others.
FINAL RECOMMENDATIONS FOR GOVERNMENT, LEGISLATOR
AND LEGAL PRACTITIONERS AS WELL AS OTHER
INTERESTED PERSONS.

Based on the above findings and in accordance with the lectures and
communications that took place on 4 and 5 March in the Assembly Hall of the
Faculty of Law at Burgos, we have to establish a set of recommendations,
waiting that in the second edition of the international congress in 2012, many of them have
become real .
o Restorative practices should be present in all aspects of everyday life
(schools, workplaces, leisure ...) because conflict is something
substantial to humans, its existence is inevitable, yet we learn by and
through the conflict. Through Restorative Practices base on dialogue and
communication we can achieve a more mature, responsible society and we will be able
to manage our problems without delegate the conflict to a external person (without
going to court in every moment)

o Professionals engaged in Restorative Justice should provide
mechanisms (as is the case in countries such as Norway) to ensure that
certain minor matters such as petty crimes don’t reach the courts,
resolved exclusively through restorative techniques. This was to fulfill the
principle of minimum intervention of criminal law. Similarly, people learn skills
to manage and resolve their problems, helping to avoid "escalation of the conflict “and
promoting social peace. And serious crimes usually arise from small disputes because
of that we can talk about the preventive importance of Restorative Justice and its tools
as mediation
.
o In our current criminal justice system purely retributive in which the State
is left with the criminal conflict, try defending above all things the rule
breached and decide according to it the punishment and guilt, we should
aim at a Restorative justice system in which the victim can recover, decide how he will

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be repaired and the offender has the opportunity to assume and take responsibility for
his conduct through this repair the damage.

o The government should care about this institution, recognizing the great
benefits and regulating it. This regulation should broadly comprise Restorative
Justice and not limited to victim-offender mediation because other tools may be more
appropriate in certain circumstances. They should provide these services with economic
fund, although many of them have already been working for sometime, thus dignify their
work and provide some certainty for both the professionals and the public in general.

o In addition there should be "union" between all those involved both
directly and indirectly to achieve a more effective law and it would be
possible to do so based on our European environment in which specific
laws exist on the subject, and the work of researchers in Restorative
Justice.
It is not about wanting the "medal" but acting for the common good, to achieve a
society fully restorative and criminal justice system if we were to reach it, also
restorative

o Training in this area is another point to consider, for this we can build on the existing
international and European recommendations on the training of professionals, such as
the European Forum for Restorative Justice, an organization that is recognized by the
European Commission. In particular for our future generations it would be desirable that
there could be subjects of restorative justice and restorative values and principles from
colleges to universities, finishing even with the need to create a degree of Restorative
Justice and its tools, but this can only occur when we reach to be a restorative society
in all respects. And so, we must get the cooperation of all: politicians, journalists,
judges, prosecutors .Together, we must do more to society than punishment and
punishment are not the solution.

Finally, we consider useful to offer a short summary of literature, as these
conclusions are based on what it was said during the two-day congress
by the people involved, as reflected during this time and in the existing
literature on the subject.

• Nordenstahl Eiras, Ulf Christian "victim-offender mediation from practice to theory"
Historical Library. Ed. 2005.Argentina

• Christie, N "Images of man in modern criminal law." Criminology and Criminal Law
Institute. University of Oslo

• Domingo de la Fuente, Virginia "Restorative Justice and victim-offender Mediation
from theory to practice." Article published in the journal of criminal law, lex nova.
January.2008.

• Domingo de la Fuente, Virginia "Introduction to mediation." No 00/2006/1326

• Roxin, C "repairing in the criminal justice system of sanctions." Days on criminal law
reform in Germany. Ed notebooks the Supreme Judicial Council. Madrid. 1 991, p. 119

• Domingo de la Fuente, Virginia "Restorative Justice and domestic violence: possible, e
error or success”

• Domingo de la Fuente, Virginia "Present and future of the victim-offender Mediation

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and Restorative justice in Spain”. August.2009.

• Report of the victim-offender Mediation Service of Castilla y León (Burgos) 2007



• Norwegian Penal Law Mediation, 1992, as amended in 1993 and 2003.

Circular of the Norwegian General Prosecutor, 1993

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