Applied Ethics in Probation and Mediation in Criminal Matters

Applied Ethics in Probation and Mediation in Criminal Matters One of the priorities of the Ministry of Justice of the Slovak Republic (MS SR) in 2003 was the preparation of a law on probation and mediation officers. The adoption of the Act on Probation and Mediation Officers also presupposed Government Resolution No. 1328 of 11 December 2002 on Priority Tasks of the Government of the Slovak Republic arising from the European Commission’s regular report on Slovakia’s readiness to join the European Union of 9 October 2002. By fulfilling this requirement, probation and mediation in criminal proceedings were regulated by Act No. 550/2003 Coll. on Probation and Mediation Officers. For the purposes of this law, probation and mediation in criminal matters are carried out by probation and mediation officers, who are in public employment, and whose employing authority is the court. Law No. 549/2003 Coll. on Court Officers provides in § 2 that probation and mediation officers, like senior court officers and court secretaries, are court officials. The conceptual and methodological leadership and guidance of probation and mediation is provided by MS SR, whose advisory body is the Council for Probation and Mediation, composed of judges, prosecutors, probation and mediation officers, representatives of public administration bodies, and experts from theory and practice, where the professional group of social work is also represented (the functionality and effectiveness of this council’s proposals and activities is debatable, note by the author). We present a clear overview scheme of organisational leadership of probation in Slovak government bodies in Figure 1. The separate Probation and Mediation Department of MS SR was abolished in 2010 as an independent section within the Department of Criminal Law during reorganisation. In terms of duties, it was incorporated into the Department for Supervision over Criminal Justice and Clemency. This means that duties in this area are performed by one of the state counselors working in the department for supervision over criminal justice and clemency.

In Slovakia, we have been confronted with the term probation since the implementation of the pilot project on probation and mediation in criminal matters from 2002. One year later, the already mentioned independent legal regulation was adopted, which establishes the performers of probation activity—probation and mediation officers at district courts—and legally regulates probation as:

1. “the organisation and performance of supervision over the suspect, accused or convicted person,
2. monitoring the performance of non-custodial punishment, including imposed obligations or restrictions,
3. supervision of an accused person’s behaviour during probationary period in conditional release (2) from imprisonment,
4. helping the accused person so that he or she leads an orderly life and complies with the conditions imposed by the prosecutor or the court in criminal proceedings” (Law No. 550/2003, § 2).

The legal regulation also specifies the target client groups (conditionally released, conditionally sentenced, clients under probation supervision), representing a marginal group in society that has broken the law and requires a specific approach to “living a life without criminal offences.” A specific approach to professional support for the target groups of probation is self-evident, including legal, psychosocial and economic aspects. In a broader sense, we understand probation as a continuous process of professional support and control, with an individual approach to the client, including legal, psychosocial and economic aspects aimed at “living a life without criminal offences.” Davies (2000, p. 270) states that there are many variations in the details of probation forms in different legal systems, but in all of them we can identify three essential elements:

1. a court order containing requirements the offender must meet,
2. regular contact with a probation worker,
3. preventing further punishment for the committed act when the requirements set by the court are satisfied.

Probation, however, needs to be professionalized. Čipkár (2003) believes that professionalism becomes impoverished if it is reduced only to a collection of professional knowledge and habits. True professionalism necessarily includes a certain moral and ethical dimension, which is realised in professional duty, in the most conscientious relationship to professional honour, and in a high degree of professional responsibility. In general, we could say that the professional responsibility of probation and mediation practitioners, as well as the ideal of the profession—which is the complex not only of the good qualities of probation and mediation officers, but above all of their integration into the everyday conduct of probation and mediation officers—is grounded in the ethical code. An ethical code in the work of probation and mediation officers is a necessity that ensures protection both of the client and society, and of the status of this occupation. In a broader context it also presents the attributes of professional approach toward the client and ethical responsibility both to the client and to colleagues, employer and society.

The current stage of development of probation and mediation services in Slovakia can hardly be described as satisfactory. A frequently repeated argument used to justify the current state of probation and mediation services is their short existence in our context. This argument cannot be accepted, as evidenced by the outputs from the STARR conference held 28–30 April 2010 at the University of Cambridge. In countries where the institution of probation and mediation in criminal matters has been established over a comparable time period to ours, a wide range of concrete projects and measures is currently being implemented, aimed at the practical improvement of this institution. The problems we presented at several scientific events concerning probation and mediation in criminal matters can be summarised in the following focus areas:

• an insufficient number of probation and mediation officers working in district courts and the absence of probation assistants,
• the absence of standards of probation practice and an ethical code,
• contradictory approaches in probation and mediation practice and non-observance of the paradigm of research-informed practice and the principle of “lege artis,”
• systematic and long-term failure of supervisory bodies and educational institutions of probation and mediation services.

If we reflect these areas through the lens of general systems theory and its basic principle (“the whole is greater than the sum of its parts”), then the current existence of this institution strikingly leads to the conclusion that probation and mediation in criminal matters exist in our country, but they stagnate, or at best do not reflect the most recent research and scientific findings. (3)

Everyday situations place probation and mediation officers in decisions that more or less directly affect people and therefore carry an ethical dimension. To support probation and mediation officers in ethical practice, ethical decision-making guides can help them, especially in situations where it is not clear which alternative action is the “correct” one. Ethical theories, ethical decision-making models, or an ethical code can serve as such guides.

In 2009, because of the absence of an ethical code in this “profession,” we prepared a project within the institutional project of the University Grant Agency titled Design, Implementation and Evaluation of the Ethical Code of Probation and Mediation Officers in the Slovak Republic, and created a working group in which the following organisations are represented:

• the Department of Social Work and Social Sciences at UKF and the rectory of UKF in Nitra;
• the Ministry of Justice of the Slovak Republic (probation and mediation department);
• the Glasgow School of Social Work;
• the Probation and Mediation Office of the District Court NR.

The research project “Creation, Implementation and Evaluation of the Ethical Code of Probation and Mediation Officers in the Slovak Republic” is closely connected with practical probation and mediation work at district courts. The newly created regulatory ethical code of probation and mediation officers, which is the main goal of the project, will influence the quality of the implementation of probation and mediation in criminal matters in the Slovak Republic. The regulatory ethical code, as a set of detailed rules governing professional conduct, also serves as a basis for handling complaints. The rules are enforced through a monitoring system and by applying sanctions for non-compliance with the ethical code (Luknič, 1994, p. 198). Project implementation is divided into the following phases:

1. CREATION

of the ethical code of probation and mediation officers in Slovakia Stages of creating the ethical code of probation and mediation officers in Slovakia: I. A workshop of the working team and establishment of concrete strategic steps leading to fulfilment of project goals. II. Content analysis and study of existing ethical codes of probation services used in EU countries. III. A descriptive survey of the views of foreign experts on the needs for specific items of the ethical code of probation and mediation officers in Slovakia, its analysis, interpretation and conclusions. IV. Drafting the ethical code, based on exploratory feedback from foreign experts and the team work of the working group, and review by individual members of the working group. V. Revision of the draft based on comments and final processing in electronic form.

2. IMPLEMENTATION

of the ethical code of probation and mediation officers in Slovakia into practice I. Distribution of the ethical code by email to all probation and mediation officers in the Slovak Republic for comments. II. Organisation of a workshop on the topic “ethical code of probation and mediation officers in Slovakia” to enable discussion by the working team, academic professional public and practitioners of probation and mediation, and evaluation of the workshop and its findings. III. Evaluation and revision of the code based on comments and its final adjustment in electronic form. IV. Graphic design and printing of the ethical code for probation and mediation officers in the Slovak Republic with an expert commentary of at least 20 pages. V. Publication of the ethical code in professional journals focused on criminal justice and probation practice in the Slovak Republic.

3. EVALUATION

of the ethical code of probation and mediation officers in Slovakia I. Identification of contentious and problematic areas of the ethical code in practice on the basis of feedback from probation and mediation officers in the Slovak Republic. II. Incorporation of necessary changes into the ethical code in relation to its effective application in practice. Final report on project implementation and publication of selected aspects in professional literature.

Rules and codes are important in every profession, but being a good probation and mediation officer does not mean merely following a set of rules. We believe that a probation and mediation officer becomes a good probation and mediation officer and a professional when he or she personally reflects on the norms and principles offered by the ethical code, tries to understand them, integrates them into their inner world and allows them to guide the performance of their work. Not the adoption of the code as an external normative standard, but the appropriation of it as one’s own norm is the challenge for probation and mediation officers. Therefore, so that probation and mediation officers can develop as professionals and improve the quality of their work, they should know and internalise their ethical code.

During the creation of this contribution, we also actively discussed whether the status of probation and mediation officers can scientifically be labelled a profession or a semi-profession. According to Lúkášová-Kantorková (2003), semi-professions performed in large bureaucratic organisations with hierarchical structures headed by administrative authority have a large number of members, a high proportion of women, require lower education with shorter preparation time, and have lower legitimate status. Whereas Greenwood (1954 in Matoušek et al., 2003, p. 39) considers systematic theory, authority recognised by clients and society, professional culture and an ethical code to be basic characteristics of a profession, Krsková (1994) identifies core attributes of a profession as: extensive training, an intellectual component contained in training, existential importance of expert services, formation of professional associations, autonomous expert decisions and service to values.

Probation and mediation in criminal matters is an institution that should develop in line with the most recent scientific findings. The current absence of standards of probation practice as well as an ethical code contributes to inconsistent approaches in practice, which in probation is reflected especially as a risk factor regarding recidivism in criminal conduct. The aim of this paper was to present basic information about a project aimed at creating an ethical code used in the practical work of probation and mediation officers.

Author: PhDr. Martin Lulei, PhD. Mgr. Zuzana Mališková, PhD. Department of Social Work and Social Sciences, UKF

List of Bibliographic References

[1] ČIPKÁR, Ján. 2003. Profesijná etika právnika. Košice : UPJŠ, 2003. 171 s. ISBN 80-7097-355-2. [2] DAVIES, Martin. 2000. The Blackwell Encyclopaedia of Social Work. Oxford : Blackwell Publishing, 2000. 412 s. ISBN 0-631-21451-8. [3] JEDLIČKA, Richard a kol. 2004. Děti a mládež v obtížných životních situacích. Praha : Themis, 2004. 478 s. ISBN 80-7312-038-0. [4] KRSKOVÁ, Alexandra. 2004. Etika právnického povolania. Bratislava : UK, 2004. 131 s. ISBN 80-7160-065-2. [5] LUKÁŠOVÁ-KANTORKOVÁ, Hana. 2003. Učitelská profese v primárním vzdělávání a pedagogická příprava učitelů (teorie, výzkum, praxe). Ostrava : OU, 2003. 302 s. ISBN 80-70-42-272-6. [6] LULEI, Martin, MALIŠKOVÁ, Zuzana. 2010. Tvorba, implementácia a evaluácia etického kódexu probačných a mediačných úradníkov v Slovenskej republike. In 2. Česko-slovenská konference doktorandů oborů pomáhajících profesí. Ostrava : Ostravská univerzita, 2010. s. 219-227. ISBN 978-80-7368-782-3. [7] LUKNIČ, Arnold. 1994. Štvrtý rozmer podnikania - etika. Bratislava : SAP, 1994. 344 s. ISBN 80-85665-30-1. [8] MATOUŠEK, Oldřich. a kol. 2003. Metody a řízení sociální práce. Praha : Portál, 2003. 380 s. ISBN 80-7178-548-2. [9] ZÁKON č. 549/2003 Z. z. o súdnych úradníkoch v znení neskorších zmien a doplnkov. [10] ZÁKON č. 550/2003 Z. z. o probačných a mediačných úradníkoch v znení neskorších zmien a doplnkov.

(1) The paper was developed within the framework of project UGA VIII/8/2009 - Creation, Implementation and Evaluation of the Ethical Code of Probation and Mediation Officers in the Slovak Republic - representative of the project leader. (2) As an equivalent of the term conditional release, the term parole is used in foreign professional literature. Parole is understood as “a legal term denoting a form of conditional release that allows some convicted persons to serve part of their sentence outside prison, with mandatory cooperation with a probation officer as an inseparable part” (Jedlička et al., 2004, p. 447). (3) Here it is important to stress the regional differences among individual district courts.

The lecture was delivered at the international scientific conference Applied Ethics in Social Work and Other Helping Professions, held on 20–21 October 2010 in Piešťany, and was published in the proceedings of that conference: MÁTEL, A. – SCHAVEL, M. – MÜHLPACHR, P. – ROMAN, T. 2010. Aplikovaná etika v sociálnej práci a ďalších pomáhajúcich profesiách. Zborník z medzinárodnej vedeckej konferencie. Bratislava : VŠZaSP sv. Alžbety. 413 s. ISBN 978-80-89271-89-4.