Probácia, mediácia a ich význam pri riešení delikvencie detí a mládeže

title: Probation, mediation and their importance in addressing delinquency of children and youth type: Article language: English published: 27 Jun 2013 updated: 15 Mar 2018 category: Sociálna práca author: PhDr. Roman Kučera source: https://www.prohuman.sk/socialna-praca/probacia-mediacia-a-ich-vyznam-pri-rieseni-delikvencie-deti-a-mladeze

Probation, mediation and their role in addressing children and youth delinquency

INTRODUCTION

The effectiveness of penal measures in the area of juvenile delinquency is a highly debatable issue. In the case of imprisonment, the effectiveness of this punishment is the subject of extensive discussion among various experts. Many would certainly agree that this type of sentence is unlikely to fulfill a rehabilitative function for a juvenile offender. From an economic perspective, this type of punishment is also not effective in this area. The probation and mediation service should have tools that bring about changes in the behavior of minors and adolescents who offend and prevent repeated delinquent conduct. One of these tools is probation supervision.

In this article, we wish to highlight an alternative approach to juvenile and youth delinquency using probation and mediation services, with the intended purpose of probation and mediation services being the positive guidance of the young person toward an orderly life and the removal of the causes and consequences of the committed offense. At the same time, probation and mediation services should help them reintegrate into society and accept social rules, values, and principles.

I. PROBATION AND MEDIATION SERVICE

1.1 History of probation and mediation service in Slovakia

The Ministry of Justice of the Slovak Republic has been preparing a substantial recodification of criminal law codes for several years. In May 2000, the Government of the Slovak Republic approved the legislative framework for the recodification of the Criminal Code and the Code of Criminal Procedure. Restorative justice became its philosophical basis.

Imprisonment should be imposed only when necessary, when no alternative solution of the criminal case can be found. In order to implement alternatives, the establishment of the Probation and Mediation Service (PMS) was envisaged.

In Slovakia, PMS is to be developed as a centralized service that takes local specifics into account. The reason the Ministry of Justice establishes such a service is, among other things, to strengthen the rights of victims of crime, to provide active support for offender resocialization and their smooth return to society after committing an offense, and at the same time to have an educational influence on the wider community. The probation and mediation service in Slovakia aims to position itself among institutions that will actively participate in criminal prevention programs.

To support PMS activity, the Ministry of Justice prepared a draft amendment to the Code of Criminal Procedure within the pilot project introducing the institution of reconciliation. If statutory conditions are met, with the consent of the suspect and the victim, a court and, during the pre-trial phase, the prosecutor may approve a reconciliation and discontinue criminal proceedings. One of the conditions the suspect must satisfy is that they have compensated the damage caused by the act, provided for another form of reparation, or otherwise remedied the harm caused by the offense. In the negotiation between offender and victim, mediation is used as a method of dispute resolution resulting from the offense.

In October 2001, a working group to prepare the PMS pilot project began its work, established in the criminal law division. Its members included representatives of authorities active in criminal proceedings (judges, prosecutors, judicial police officers, and representatives from the Presidium of the Slovak Police Force) as well as representatives of the third sector. Since 2002, the Ministry of Justice of the Slovak Republic launched a pilot project of probation and mediation service, which was to be implemented without amending the Criminal Code and Code of Criminal Procedure. It was therefore necessary to make room for probation and mediation officers’ work. Although Slovak criminal law at the time did not know community service, nor so-called “supervisory” punishments, probation activity could still be carried out within the pilot project, because the court could, under the Criminal Code, impose certain restrictions and obligations on the convicted person under probation supervision by a probation officer. The probation officer was not only to monitor whether the convicted person complied with the imposed restrictions and obligations, but, in cooperation with the offender’s family and community in which the convicted person lives, to ensure resocialization (Fenyk, Sotolář, 1997).

The Ministry of Justice’s priority task regarding probation, mediation in criminal cases, and the work of probation and mediation officers in 2003 was preparation of the Act on Probation and Mediation Officers. The Act establishes different forms of supervision over the suspect and monitoring focused on compliance with obligations and prohibitions set during probation. It requires the participation of qualified persons with appropriate competencies. People working with mediation at the same level then create conditions for the use of diversions in criminal proceedings. The draft law proposed the establishment of the probation and mediation officer, including their position, scope, rights and competencies. At the same time, together with the Act on Probation and Mediation Officers, the National Council adopted the Act on Court Officers, under which a probation and mediation officer became part of the professional court apparatus (alongside the senior court officer and court clerk). The draft was prepared by the criminal law section and submitted to the legislative process in April 2003. After discussion by the Government Legislative Council and the Government of the Slovak Republic, it was approved at a session of the National Council of the Slovak Republic on 28 October 2003.

The term “probation” derives from the Latin probare, which means testing or verification. Probation is a form of supervision over convicted persons. It can be seen as a type of sentence that, however, is carried out in the community. Probation also involves collecting information about the suspect, including their social, family, and occupational situation.

According to the definition of the United Nations, probation is a method of dealing with a selected group of offenders under a suspended sentence, where supervision is ordered together with individual counselling and other support conditions. In the broader sense, probation is also considered work in the field of community service and other penalties and measures that include forms of individual work with the client aimed at fulfilling specific obligations and conditions.

In general, probation activity can be understood as:

• supervision of a suspect’s behavior when ordered, and monitoring of behavior during probationary period;
• creating conditions for conditional discontinuance of proceedings, or for negotiating and concluding compensation agreements, or possible other alternative procedures and alternative penalties;
• supervision of behavior where pre-trial detention has been replaced by probation supervision, or monitoring conduct during probation in cases where conditional release from imprisonment has been ordered;
• gathering background information on the suspect and their family and social circumstances (Suchý, 1997).

In a narrower sense, probation is an alternative criminal sanction whose core attributes are:

• the fact that the offender under supervision remains at liberty,
• the court finds the offender guilty, defers the sentencing decision, and for a specified period sets behavioral conditions, failure to comply with which may lead to issuance of a conviction with a punishment sentence,
• supervision of compliance with the stated conditions is carried out by a professional worker closely connected to both criminal justice authorities and the offender, who motivates the offender toward law-abiding living and oversees compliance with obligations and restrictions imposed by the court (Sotolář, 2000).

Probation, or probation supervision over the suspect is ordered by the court. Unlike mediation, probation is mandatory and its role is to supervise court-imposed obligations while simultaneously motivating and guiding the client toward lawful conduct. A key purpose of probation work is the qualified enforcement of alternative punishments.

A probation program is usually part of this as well. It is an educational measure, through education, social work, and psychotherapy, that helps the minor remove the causes of conflict. The purpose of a probation program is to offer the minor a more favorable sentencing alternative that, unlike imprisonment, can positively influence the minor and change negative behavior patterns and lead toward lawful living.

The purpose of probation work is to motivate the suspect to actively participate in addressing the consequences and causes of the offense, help change attitudes, and foster lawful conduct. Probation activity has major importance in humanizing treatment of suspects, convicted and accused persons, meaning that it interferes less with their social ties and traumatises them less psychologically (Novotný, Zapletal, 2001).

1.2.1 Probation in relation to juvenile offenders

The same basic goals and principles of probation applied to adults are used with juvenile offenders, with certain differences. A young offender must be approached differently from an adult, because physically and especially psychologically the juvenile is not as fully developed as an adult. Before repressive measures are applied, methods should be prioritized that can help eliminate negative influences of the social environment on their behavior and motivate them to develop their positive traits. Attention should be paid to the personality of the minor, their age and intellectual and moral development, health condition, and personal, family, and social circumstances.

According to Alexander Sotolář, the meaning of probation in juvenile matters is:

• positive professional guidance of the minor combined with necessary support and motivation toward life in accordance with generally binding norms, aimed at ensuring that in the future the minor leads an orderly life, stabilizes personal circumstances, and removes causes of criminal behavior;
• steps toward reintegrating the minor into society and creating conditions for further positive social development;
• monitoring and control of the minor’s behavior and protection of society against potential harm from the minor;
• reducing the risk of recidivism.

The word “mediation” is derived from the Latin medius (“median”), which translates as middle, intermediate, situated between one and the other, impartial, undecided, undefined. Mediation is extra-judicial facilitation of dispute resolution between the victim and the suspect. Mediation is conducted only with the consent of both the victim and the suspect. If the suspect is a minor, consent of their legal representative is also required. In international documents, mediation means an extra-judicial process in which a neutral third person (mediator) helps the parties resolve their conflict, i.e., settle a dispute related to their contractual or legal relationship and reach a mutual agreement. In common usage, mediation is an alternative method of conflict resolution, with the mediator helping the parties find an acceptable solution for the situation to repair relationships.

The aim of mediation is to ease or even resolve conflict states associated with a criminal offense, usually leading to removal of damage and consequences caused by the offense. The goal is for the offender to align with the norms and values protected by law, and on that basis to be motivated and show a voluntary effort to repair, for example, by compensating the victim. Criminal justice authorities then also consider such an attitude. A major advantage of mediation in criminal matters is the variety of practical forms through which it can be applied, allowing individualization in each case. Mediation is generally an opportunity for the suspect to avoid ordinary criminal prosecution and sentencing. For the victim, it is a path to quick compensation without lengthy and often costly civil litigation (Kroftová, Ouředníčková, 2005).

Through mediation, reconciliation between the parties is achieved and mutual understanding, which has a significant psychological impact on both the offender and the victim. Quick compensation and restitution of damage can thus occur.

Advantages of mediation compared with classical court proceedings include:

• Voluntariness – participation in mediation and acceptance of agreement is voluntary; no one can be forced into the process. For mediation to succeed, all parties must participate in resolving the situation.
• Speed – disputes processed through mediation can be resolved quickly and immediately, without unnecessary delays.
• Low costs – mediation does not impose as high expenses as court fees and other legal services in judicial proceedings. Participants share costs.
• Confidentiality – unlike civil court proceedings, where openness is the rule and court hearings may be attended by others except for certain exceptions, mediation is confidential.
• Approachability (psychological aspect) – the benefit of this alternative dispute resolution, in contrast to judicial or arbitral routes, is the possibility of psychologically safer interaction: parties do not stand before a judge, they are not truly being tried, they do not attend hearings as opponents, but with the help of a neutral third person they try to conduct a civil dialogue and find mutually acceptable solutions, which ultimately increases the chances of both parties succeeding.

The outcome of mediation is a clearly formulated, understandable, practically implementable agreement that is mutually acceptable to all participants. Unlike court-led proceedings, all participants contribute to its shape. The agreement must be in writing and signed; only then does it assume the nature of a legal contract. It includes specific steps for resolution, allocation of responsibilities, tasks, and sanctions for noncompliance.

“Child” is a person under age 15 or under 18; in a broader sense, any direct descendant of a parent. Under the Convention on the Rights of the Child, a child is every human being under eighteen years, unless the relevant legal order to which the child is subject recognizes legal adulthood earlier (Riskin, 1997). In Slovak law, the age of majority is regulated by the Civil Code. Under the Civil Code, majority is attained at the age of eighteen; before that age one can attain majority only through marriage.

“Youth” is a socio-demographic group aged 15 to 30, i.e., a minor, a youth, or so-called young adult, with distinctive characteristics, interests, and value orientations that distinguish it from other age groups.

“Delinquency” (from Latin delinquere = to offend; English: juvenile delinquency) means antisocial, or anti-social behavior of children and youth. It is behavior contrary to criminal law norms, i.e., the commission of crimes. It is a broader concept than criminality, since it also includes crimes committed by persons not criminally liable, namely those under fifteen and persons with abnormal behavior.

Delinquency can be divided into three groups:

• juvenile delinquency – a minor is a person under fourteen who, under Criminal Code No. 300/2005, is not criminally liable for the offense committed;
• juvenile delinquency – under Criminal Code No. 300/2005, a juvenile is a person who at the time of the offense had reached fourteen and had not exceeded eighteen years, and is criminally liable for the offense committed;
• youth delinquency – under Criminal Code No. 300/2005, this refers to delinquent acts by persons aged eighteen to twenty. Such a youth is criminally liable, while the court takes account of their age as near juvenile age.

1.3 Mission and purpose of probation and mediation services

Probation and mediation work is based on a restorative justice concept (from the English restore – to restore, to heal). Restorative justice focuses on harms caused by the offense and strives to address victims’ needs, supports offender accountability for resolving the resulting situation, and involves the victim, offender, and community in the process. Restorative justice gives priority to a collaborative and participatory process and prefers outcomes and resolutions based on mutual agreement of those involved.

The mission of probation and mediation services is to contribute to achieving criminal justice goals primarily by creating conditions for the use of alternative procedures in criminal proceedings, ensuring effective enforcement of alternative penalties, and finding an effective response to each offense. For this purpose probation and mediation activities are performed; they contribute to settling disputes between suspect and victim and strive to settle conflict situations, restoring respect for legal norms in relation to criminal proceedings.

The probation and mediation mission is directed toward three basic goals:

• Integration of the suspect – probation and mediation aim at reintegrating the suspect into social life without further violations of law. Integration is the process of restoring respect for the legal order, and promoting social participation and self-realization.
• Participation of the victim – probation and mediation aim to involve the victim in the “process” of reparation and restoration of their sense of safety, integrity, and trust in the legal system.
• Protection of society – probation and mediation contribute to protecting society by resolving conflictual and high-risk situations connected with criminal proceedings and by ensuring the enforcement of alternative punishments and measures.

II. STATUS, ACTIVITIES, AND TASKS OF PROBATION AND MEDIATION OFFICERS

In criminal matters heard in Slovakia, probation and mediation services are provided by probation and mediation officers, whose status, activities, and tasks are defined by Act No. 550/2003 on probation and mediation officers. The probation and mediation officer helps ensure that, in appropriate cases, a criminal case can be dealt with through special criminal procedures, that a non-custodial sentence can be imposed and properly executed, or that pre-trial detention can be replaced by another suitable measure.

Main activities of a probation and mediation officer include: a) gathering information about the suspect and their social, family, and working environment; b) creating conditions for conditional discontinuance of proceedings or approval of reconciliation; c) carrying out actions for agreements between victim and suspect on restitution and on removal of harm caused by the offense; d) conducting supervision of suspect behavior during probation and monitoring execution of non-custodial penalties; e) carrying out other criminal procedure actions related to probation and mediation.

A probation and mediation officer is authorized, in performing duties, to obtain information and assessments about the suspect and the victim that are important for court or prosecutorial decisions. Police, investigators, and prosecutors inform the probation and mediation officer of cases suitable for mediation and, especially in cases involving minors, proceed so that mediation can be used from the stage of charging.

The mission of probation and mediation officers is to develop activities—taking into account the person of the suspect, the nature of the offense, circumstances of its commission, and other relevant factors—that aim to reconcile disrupted social and legal relations, facilitate alternative resolution of suitable criminal cases, reduce the effects of prosecuted criminal behavior, and address the immediate life situation of individuals affected by such crime.

Basic principles for developing a probation program are:

• the probation program serves to specify supervision content and its concrete form for the individual;
• it is prepared by the probation officer, possibly with an assistant, together with the client at the start of probation and is updated as needed;
• completing the probation program is an integral part of supervision implementation;
• creating a probation program is primarily working with a person, not just completing a form;
• the rules of supervision are clearly and comprehensibly defined, and the client is informed by probation staff (or assistant) about the purpose and meaning of the supervision, as well as about rights and obligations arising from it.

The task of probation staff in carrying out supervision is regular evaluation of supervision in cooperation with the client. Other activities of probation and mediation officers may include providing information services. These involve providing information primarily to victims and also to offenders about case proceedings, methods of addressing offending, compensation methods, possibilities of mediation, and the mediation process itself, among other things. A probation and mediation officer providing social services in criminal justice occupies a specific position: the legal codes governing legal professionals are exact, rigorous, and binding. In contrast, a sufficiently trained probation and mediation officer has flexibility in their working approach with clients. Professional competence in this context is bounded by two categories: social assistance primarily to victims of crime and social control of the offender.

2.1 Basic principles and principles of probation and mediation officer activity

In work with clients, probation and mediation officers should respect these principles:

• Dignity of process: their way of working with clients must align with basic human rights and freedoms and must respect dignity and autonomy.
• Legality: their conduct in probation and mediation must comply with applicable laws.
• Proportionality of intervention: the extent of involvement of probation and mediation personnel with the offender must not exceed the scope and content of the court’s or prosecution’s competent decision.
• Transparency: probation and mediation workers strive to provide criminal justice authorities with sufficient information about client work and also to provide clients with understandable information about the system and legal context into which they entered as a result of the offense.
• Individualization: probation and mediation staff take into account clients’ individual needs, interests, and the circumstances of each case.
• Balance: probation and mediation staff promote a balanced approach to the needs and interests of suspects, victims, and society in order to find mutually acceptable solutions.
• Motivation: probation and mediation staff actively encourage client participation in addressing offense consequences. They support the offender in finding resources and competencies that enable them to change prior behavioral patterns that brought them into conflict with the law. They also offer the victim the possibility to become an active subject able to influence conditions and methods of their own reparation.

III. CAUSES OF DELINQUENT BEHAVIOR OF CHILDREN AND YOUTH

Delinquent behavior in youth may be a rare, non-repeating event, but it can also mark the beginning of repeated criminal conduct. There are different views on the causes leading children and adolescents to criminality. Delinquent children and youth are emotionally disturbed individuals. By this we mean behavioral and social relationship disorders, where internal confusion and pain are assumed as sources. Typically, these are disorders with emotional trauma histories and long-term unmet basic social and developmental needs.

Such disorders manifest through clusters of symptoms, for example:

• aggression – a wish to harm another person, arising from anger and frustration,
• depression – low mood accompanied by sadness, pessimism, self-criticism, psychomotor slowing, insomnia, and loss of appetite,
• shame – triggered by violating norms and expectations imposed by others,
• anger – internal readiness for aggression,
• mania – a state of euphoria, excitement, and a sense of internal well-being, accompanied by hyperactivity and quick irritability,
• motor restlessness,
• learned helplessness,
• perfectionism – a desire for perfection,
• inferiority feelings – comparison of performance and abilities,
• obedience – willingness to submit,
• pride – vanity, self-indulgence,
• sadness,
• fear – aroused by the present situation,
• anxiety – aroused by thoughts,
• guilt, remorse – a form of protection against unresolved conflicts,
• envy,
• jealousy (Matoušek, Kroftová, 2003).

3.1 Factors influencing the emergence of delinquent behavior Family The family has a special role among natural educational means for the development and upbringing of the younger generation. In the family, a child receives basic education and is introduced into broader social relations. In the period when the child derives all ideas, attitudes, and behavior from adults, the entire family atmosphere strongly influences personality formation. Family context is especially important for the development of adolescents. If the family does not fulfill its role, the child is likely to have tendencies toward delinquency.

A negative family environment greatly influences the upbringing of children and youth. If the family does not fulfill its role, the child is likely to have tendencies toward delinquent behavior.

These are mainly families:

• incomplete or divorced,
• with unclear rules regarding child behavior,
• with insufficient time devoted to upbringing and indifference toward the child,
• with insufficient supervision,
• where consistent and excessive strictness is used,
• with weak or insufficient emotional attachment,
• where marital conflicts prevail,
• where alcohol and drug use by children is tolerated,
• where parents continuously devalue the child,
• with poor social or economic conditions,
• where child sexual abuse occurs,
• where family members engage in criminality,
• where the child is neglected or abused (Hatar, Lohinová, 2005).

School and peer groups “School” is another significant factor affecting delinquent behavior in children and youth. Most juvenile offenders did not complete secondary education, and many had problems already in primary school. For some, intellectual difficulties were observed, shown as lack of self-criticism and limited reasoning. Other serious negative phenomena in school include bullying. Usually this is the conduct of one child or group of children causing harm to another child, physically or psychologically (various mockeries, threats, insults, etc.). A child’s experience in school can also be strongly influenced by the teacher’s attitude. A negative teacher attitude toward students, authoritarian behavior, ridicule, sarcasm, threats, and punishment use together can create emotional tension, instability, and negative attitudes in many students. Other influential factors include poor academic performance, truancy, and negative influence from other students. “Peer groups” are a natural form of children’s and youth life. A peer group develops self-control, conscientiousness, courage, a sense of fairness, patience, loyalty, devotion to a cause, understanding of societal relationships, sensitivity to art, and sensitivity to others’ feelings. These are usually age-homogeneous groups of youth, which can also be described as spontaneous groups that combine characteristics of face-to-face relationships typical of primary groups (family) and relationships typical of large groups, in which peer group evaluation emphasizes performance.

Signs of antisocial peer groups include:

• rejection of authority;
• antisocial behavior by peers;
• positive attitudes toward drugs;
• stronger influence of the peer group than parents;
• ridicule and reduction of some members’ self-confidence by the group itself.

Leisure activities Inappropriate use of leisure time can be another condition leading to delinquent behavior in children and youth. Inappropriate leisure can include:

• playing aggressive computer games,
• frequent visits to nightlife venues, bars, discos, entertainment spots,
• drinking alcohol, smoking, drug use,
• lack of interest in art or education,
• lack of interest in hobby and artistic clubs.

Mass communication media The press, radio, film, television, and the internet, thanks to modern technology, have wide reach, entering every family and accompanying every person. For the psychological and moral development of children and youth, media content depicting violence, aggression, racism, sexual promiscuity, content hostile to humanity and morality, and content mocking or denigrating the family and family relations can have negative effects.

Further negatives, risks, and consequences of media influence include:

• endangering the formation of an adequate value system,
• observing and imitating undesirable models and patterns of behavior,
• pornography,
• dependence and isolation,
• creating prejudices,
• neglecting school and school obligations.

Biological and personality factors The development of a child’s personality is also shaped by biological and personality factors that influence a person’s psyche, personality, and behavior. These include heredity, congenital physical predisposition, sex, innate aggressiveness, hyperactivity, and inherited personality predisposition. “Heredity” means transmission of physical and psychological dispositions from one generation to the next. The set of inherited predispositions usually represents only preconditions for the appearance of normal or pathological personality traits. Each person has an individual set of such predispositions and responds to external stimuli in a characteristic way.

IV. SOLVING AND PREVENTING DELINQUENCY OF CHILDREN AND YOUTH THROUGH PROBATION AND MEDIATION

Probation and mediation services in Slovakia are to be developed as a centralized service that reflects local specificities. The Ministry of Justice of the Slovak Republic’s rationale for establishing such a service is to strengthen the rights of victims of crimes, actively support offender resocialization and their smooth return to society after an offense, and at the same time provide educational influence on society at large. The probation and mediation service in Slovakia aims to join institutions actively engaged in crime prevention programs. The Criminal Code attempts to fulfill the preventive role concerning youth delinquency and crime through repression, that is, deterrence via punishment. In this repressive prevention, emphasis is placed on considering individual characteristics of each juvenile offender, their social background, and resocialization through imposed punishment. Expanding available non-custodial penalties appears to be an unquestionably suitable protective measure (Matoušek, Kroftová, 2003).

4.1 Principles of punishing juvenile offenders

Core principles of juvenile sentencing include:

• the principle of humanity of sanctions – prohibition of cruel or disproportionate punishment with respect to the particular offender,
• the principle of individualization of sanctions – the type and severity of sanction must be imposed with regard to the seriousness of the offense, aggravating and mitigating circumstances, as well as the offender’s potential for resocialization and personal circumstances,
• the principle of proportionality of imposed sanctions to the offense – non-compatibility of certain types of sanctions for the same offender – expressed as a ban on imposing sanctions of similar material character,
• the personality of the sanction – fundamentally, the sanction should affect only the offender, with the influence on their environment, especially family background, minimized.

4.2 Criminal responsibility of juvenile offenders

For a committed offense, the following types of punishments may be imposed on a juvenile:

• imprisonment,
• forfeiture of property,
• deportation,
• a fine (if the juvenile is gainfully employed),
• prohibition from engaging in an occupation (if this is not an obstacle to training for a profession).

The sentencing ranges specified in the special part of the Criminal Code are reduced by half for juveniles, with an upper limit not exceeding five years and a lower limit of one year. In some exceptional cases, imprisonment of five to ten years is possible.

4.2 Probation and mediation as an alternative method of punishing juvenile offenders

The probation and mediation service was established by the Ministry of Justice of the Slovak Republic to implement alternatives based on restorative justice principles. These principles rest on the premise that crime is a social conflict between two, and possibly more, individuals or parties, and that effective resolution requires active participation of all affected parties: the victim, offender, and relevant social community. A fundamental principle of restorative justice is that focus should be on the future rather than on the offender’s failure in the past (Kunová, 2003).

From 1 January 2006, a new Criminal Code No. 300/2005 Z. z. and Code of Criminal Procedure No. 301/2005 Z. z. entered into force, under which the scope of probation and mediation officer activity was expanded (probation supervision, community work penalties, house arrest, control of obligations and restrictions).

4.2.1 Probation supervision The basic goal of probation supervision is to act so the person does not commit further criminal behavior, builds an appropriate social support base, and can again participate in society. Within probation supervision, the probation officer emphasizes building a relationship with the person under supervision and provides basic information about supervision and how cooperation is envisaged. Probation supervision helps overcome diverse obstacles, provides psychological support for the young person’s active efforts to find their place in society, and helps them learn how to live as society expects in accordance with social norms.

Probation officers offer minors, once the purpose of probation has been fulfilled, professional help; they monitor and supervise behavior and cooperate with the family and social environment in which the minor lives, so that in the future they lead an orderly life. Officers simultaneously assist victims and others affected by the offense in removing its consequences. They pay special attention to juvenile suspects and persons of similar age to juveniles, contribute to protecting the rights of persons harmed by offending, and coordinate social and therapeutic programs for working with suspects, especially juveniles and users of psychoactive substances. In these activities, probation officers, when appropriate, cooperate with social security bodies, schools and educational institutions, health institutions, registered churches and religious organizations, civic associations, foundations, and other institutions pursuing humanitarian goals. They also closely collaborate with bodies responsible for social and legal child protection and those providing social care for maladapted citizens.

The first phase of probation supervision consists of consultation, during which the probation officer acquaints the client with probation supervision, provides information needed for a shared understanding of cooperation with the probation officer, explains the course of further cooperation, and seeks to gain the minor’s trust. Necessary information is gathered, such as telephone numbers and addresses of permanent or temporary residence, prior life history, employment, education, and the offense committed. There are cases when the convicted person does not establish contact with the probation officer and does not respond. In such cases, the probation officer is required to report it.

The second phase is preparation of the probation program, in which cooperation rules are agreed and a program is specified based on the court’s decision. It serves individual specification of supervision and its implementation. The probation officer creates it at the start of probation and updates it as needed. The foundation is the clear formulation of rules so the client can understand and then observe them. Concrete objectives and clear structure enable straightforward control of outcomes set in the probation program. A well-designed probation program harmonizes cooperation between probation officer and juvenile. The probation officer checks the juvenile at least once every two months, meeting more frequently where necessary. Reviews of goal attainment and client assessment are conducted in the client’s presence. The juvenile’s results achieved during probation supervision are sent to the court for review every six months. Through a report prepared by the probation officer, the court verifies whether the juvenile has complied with obligations and conditions during the set period.

The third phase is case closure, in which the court’s decision on execution, modification, or waiver of punishment is filed, and then the file is closed. This phase is mainly an administrative task for the probation officer.

4.3 Alternative punishments

“A restorative approach to resolving criminal acts does not mean rejecting classic penal procedures and sanctions, but rather appropriately supplements them, expands the choices of response to crime, and allows an individualized approach to the offender, which in turn positively influences the effectiveness of criminal response.” (Kuchta, J., 2005, p. 192)

Imprisonment is today understood as a last resort, to be applied only where, given the seriousness of the offense or characteristics of the offender, another punishment is not appropriate. An alternative punishment is, in principle, any sentence that does not involve deprivation of personal liberty. It is an alternative way to achieve sentencing objectives—protection of society and desired change in the offender’s behavior without the negative effects of prison.

The system of sanctions favors types of punishment not linked to custody and social isolation (so-called alternative sanctions), because it is assumed that a significant proportion of offenders are less severely disrupted and that their severe removal from social environment could have more harmful effects on already vulnerable individuals (Sotolář, 2001).

The Council of Europe played a major role in the development of alternative punishments, repeatedly raising in resolutions, studies, and other documents the issue of imprisonment, conditions of its execution, and the feasibility and usefulness of replacing it with other penalties. Similar efforts are made by the UN Crime Prevention and Criminal Justice Committee and the Economic and Social Council (Rozum, 2005, p. 13). Alternatives to imprisonment, including conditional sentencing and especially probation and community work (recommended also in UN resolutions), are now a stable part of modern systems of criminal sanctions. The duration of an alternative sanction must be directly proportionate to the offense and to the term of imprisonment that otherwise would have been imposed. The convicted person must also have realistic conditions to meet the imposed terms. Alternative punishments therefore replace shorter prison terms imposed on offenders of lesser seriousness.

Great emphasis is placed on cooperation with the offender. The goal is to achieve offender awareness of the offense and of the subsequent punishment as a fair and proportionate societal response.

Alternative punishments should be used especially with juvenile offenders, where there remains some possibility of offender reform (Sotolář, 2000).

4.3.1 Advantages of alternative punishments

Compared with imprisonment, alternative sanctioning has several advantages. The convicted person does not come into contact with the prison regime, and no loss of liberty is involved, which contributes to lower recidivism.

Prison sentences are often associated with prisonization, namely the negative influence of the environment on incarcerated persons and their immediate future after release. In most cases, prison leads to a loss of personal responsibility, responsibility for one’s behavior, and future. After release, the person may lose the ability to live freely. This can lead to the “revolving-door” syndrome, where a released prisoner unable to establish himself in a law-abiding environment seeks a type of environment where he can function—namely a criminal one. Therefore, in many cases, alternative punishments that do not isolate the person from ordinary society and do not hinder later reintegration are more suitable.

Their main advantages are that alternatives to imprisonment do not entail the negative consequences associated with deprivation of freedom. Imposing an alternative sentence gives the sentenced person a chance to serve punishment without those disadvantages, postpones exposure to prison conditions, and thus prevents undesired effects of custodial execution while being less costly. There is no severance of the individual’s social ties with their social surroundings, where they continue to live and can continue working. Such punishment also takes into account the person’s personality and individual characteristics, and for less severely disturbed offenders it is significantly more effective in reducing recidivism risk. Finally, it satisfies victims’ interests and contributes to better restitution. Imposition of restrictions or obligations should also have preventive effects against further offending. During sanction execution, compliance with conditions and conformity with societal norms are monitored (Matoušek, 2003).

According to Rozum (2005), these advantages are mainly the release of prison space for more serious offenders, reduced costs of punishment execution, greater public involvement in re-education and resocialization, growing public interest in treatment of offenders, and fostering a sense of responsibility for criminal justice among the public.

4.3.2 Community service

Work performed in the public interest should provide the offender with moral benefit; it is meant to support their inclusion in society and facilitate their adaptation to work. A major feature of community service is that it requires the convicted person to make their time and abilities available to society whose law was broken (Vanduchová, 1996, p. 397).

Publicly beneficial work is a sentence that is an alternative to imprisonment and in whose execution broader society is involved. As a major alternative sentence, public benefit work serves, in addition to cost considerations, a combination of penalty objectives: the offender experiences deprivation of free time, now highly valued in contemporary society; damages are compensated through work carried out for society; resocialization is facilitated because social contacts are not excessively damaged by deep intrusion into the offender’s life, and stable work habits and a sense of social responsibility are supported (Sotolář, 2000).

The purpose of this sanction is to create a useful outcome that should serve a broader segment of people. Public benefit work can therefore be performed only for municipalities or for state or other public-benefit institutions concerned with science and education, culture, schooling, health protection, fire protection, environmental protection, youth support and protection, animal welfare, humanitarian, social, charitable, religious, physical culture, and sports activities (Sotolář, 2000).

4.3.2.1 Advantages of public-benefit sentences

The advantage of this alternative sentence compared with imprisonment is that the convicted person is not removed from their natural environment. Moreover, if OPP is performed in an environment where the person has the opportunity to see and correct the consequences of their conduct, there is a high likelihood that the sentence will be rehabilitative and best fulfill its purpose. OPP supports the offender’s sense of responsibility for their conduct and life. It also helps regulate work habits and, importantly, if the sentence is completed within the statutory period, it is removed from the criminal record and therefore does not appear on the extract.

OPP is particularly effective for juveniles who commit vandalism, disorderly conduct, and property damage. In this way, they can remedy the consequences of their acts and become aware of the value of objects (Vůjtěch, 1998).

CONCLUSION

Our aim in writing this article was a brief excursion into probation, mediation, and their significance in addressing youth delinquency and juvenile crime, as this is a relatively new and, in our view, promising institution. In both substantive and procedural criminal law, there is a broad set of institutions that presuppose or directly require the participation of probation officers, whose activity is positively perceived in practice. Probation work is becoming an important means of crime prevention and resocialization of criminal offenders within the Slovak legal order. It contributes to achieving the purpose of criminal proceedings and also helps criminal justice authorities in decision-making and in assessing adequacy. By involving a probation officer in case handling, it becomes possible to resolve a case very quickly after the offense, while proceedings before a court may take months or years; a probation officer can help mediate resolution within weeks.

Implementing individual alternative punishments initially met some conservatism among certain judges and still faces obstacles where some sanctions cannot be implemented due to unacceptable practical conditions. For example, we lack electronic monitoring for house arrest or organizations that would provide space for conditionally released or conditionally sentenced persons. Another problematic area is the application of social trainings or other educational programs. By social training we mean programs for developing positive social behavior and self-control as well as programs in the area of addictions. Individual social trainings should focus on increasing social skills and competencies so that an offender’s ability for non-conflict living is strengthened. Educational programs should provide lectures, interviews, education, and reading of recommended literature with feedback to the offender and discussion of the presented problem.

In our conditions, fundamental methods of work are not defined, including ways to achieve set goals through work with offenders, and a generally used sequence is also missing through which probation officers could apply specific activities by institutions that would provide social trainings. Financial resources for implementing social trainings are also lacking in this area.

In the second half of 2010, as part of budgetary austerity measures implemented by the Ministry of Justice of the Slovak Republic, the department of criminology and crime prevention and also the probation and mediation division were abolished. For this reason, and due to a lack of personnel to carry out further research tasks in the Ministry’s area of competence, it was not possible to develop a long-term prevention strategy and additional planned research tasks. Probation and mediation officers have also carried out their work since the second half of 2010 without methodological guidance from the Ministry of Justice of the Slovak Republic. A further problematic area is that there were more probation officers some years ago, whereas today, where previously two to three officers worked in some courts, now on most courts only one works, which is too few for the amount of work.

Author: PhDr. Roman Kučera

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