Why are you against making amends?
NRW justice: perpetrator-victim compensation
A perpetrator-victim settlement is intended to restore the social peace between the perpetrator and the victim that was disturbed by the crime. The focus is on dealing with the conflict and making reparation for the damage that has occurred. In the relationship between offender and victim, the conflict that exists in connection with the offense should be resolved.
The reparation not only includes financially quantifiable damage, but also includes the physical and / or psychological impairments of the victim. A compromise should be found between the interests of the injured party and the performance options of the perpetrator, which both sides can live with (restoration of social peace between perpetrator and victim).
Peacemaking and reconciliation also mean that the perpetrator and the injured party get to know the other side's point of view - and (to a certain extent) learn to understand it. In addition to the material damage compensation, the form of the immaterial compensation is of particular importance. The symbolic expression of a conflict settlement can be the apology and the acceptance of the apology.
How has the perpetrator-victim balance developed?
In Germany, the first compensation projects arose in the mid-1980s through private initiatives for young people (for example in Cologne). Due to the good experience with such projects, the offender-victim compensation for young people was legally anchored in the Youth Courts Act in 1990:
In 1994 a legal regulation in the penal code for the adult sector followed, at the beginning of 2000 a provision in the criminal procedure code.
Further details are regulated in North Rhine-Westphalia by joint circulars of the Ministry of Justice and the Ministry of the Interior and - for the youth sector - the (current) Ministry for Women, Youth, Family and Health.
Offender-victim compensation (TOA) is a specific procedure:
Through the professional mediation of an uninvolved third party, the perpetrator and victim are to be supported in agreeing on a mutually acceptable compensation for the damage caused by a criminal offense.
For adults, the legal basis for taking into account the offender-victim balance is §§ 46, Paragraph 2, Sentence 2, 46a, 56, Paragraph 2, Sentence 2 of the Criminal Code, §§ 153a, Paragraph 1, No. 1 and No. 5, Paragraph. 2 sentence 1, 153b, 155a, 155b StPO, see also §§ 27 ff, 30 Gnadenordnung NRW.
The procedure itself
What exactly does the procedure look like?
At the beginning of the investigation, the police clarify whether a settlement has already taken place between the parties involved or is in the process of being. The result is to be put on record. If the police get the impression that a TOA is an option, they suggest this to the public prosecutor. The police hands out a leaflet on offender-victim reconciliation to those involved. A written consent with which the parties agree to the transmission of their data to compensation offices for the execution of the perpetrator-victim compensation must be put on the files.
The decision as to whether a TOA should be attempted is made by the public prosecutor at the earliest possible stage of the procedure. Suggestions from the police or other agencies should be taken into account. The public prosecutor's office can avail itself of judicial assistance in making a decision.
If the public prosecutor's office thinks that the TOA should be carried out, it will contact one of the aforementioned compensation offices. If the accused has to provide certain redress services, the public prosecutor will note this in the letter to the compensation office.
To initiate the offender-victim reconciliation, the public prosecutor's office provides the reconciliation body with the names and addresses of the accused and the victim, as well as the necessary information on the facts of the matter. Insofar as the public prosecutor's office turns to arbitrators or independent agencies, for reasons of data protection law, the name and address of the victim must only be transmitted to these bodies if the victim's written consent to the transfer of data is available or has been obtained by the public prosecutor's office. If the settlement office needs further information from the files or if it would like to see what is going on, it will obtain the written consent of those involved and present it to the public prosecutor's office.
If parties involved are represented by a lawyer, they must be informed in good time of the intended settlement. This can also be done by the compensation office.
The compensation office will immediately contact the parties involved and clarify their willingness to carry out the TOA. It sends a report on this to the public prosecutor at short notice with an - also provisional - compensation proposal. After the compensation proposal has been submitted, the public prosecutor's office decides on the provisional suspension of the proceedings (Section 153a StPO). If the judicial approval is required in view of the intended termination of the proceedings, the public prosecutor will obtain it. Section 153b StPO remains unaffected.
After the provisional suspension by the public prosecutor's office, the latter instructs the settlement agency to carry out the offender-victim settlement and sets the settlement agency a reasonable deadline.
After completion of its work, the compensation office reports to the public prosecutor in writing about the compensation efforts and their results, in particular about the scope of the compensation payment. If the perpetrator-victim settlement has come about, the accused has provided the settlement and no further measures are indicated, the StA finally terminates the proceedings. The demonstrably serious endeavor to redress the crime can also be rated as a success.
If the proceedings cannot be discontinued because, in the opinion of the public prosecutor's office, further measures are indicated or the TOA fails, the public prosecutor's office will resume the proceedings and ensure that the proceedings continue quickly. In the further proceedings, the public prosecutor's office must take into account any conduct that is seriously aimed at reparation and compensation for damages after the offense in accordance with the legal concept of §§ 46 Paragraph 2 Sentence 2, 46a of the Criminal Code in favor of the accused.
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