Penal mediation in Argentina and the Netherlands. Dutch Principles and Argentine Practices. A comparative investigation.

Source: (2006) Latin-American European Master in Mediation / Maestría Latinoamericana Europea en Mediación, Buenos Aires 2006-2007.

This paper offers a comparative investigation of the incorporation of penal mediation in the judicial system of the Netherlands on the one hand and the Province of Buenos Aires and the Federal Capital of Buenos Aires in Argentina on the other hand. In both countries mediation has been introduced in society through legislation and private initiatives. Regarding to institutionalising penal mediation, the situation is different in both countries. In Argentina initiatives to implement penal mediation both through legislation and through projects on a voluntary basis have in some provinces already been taken years ago while in the Netherlands the focus shifted to other restorative practices than mediation. This paper explores the differences in theory and practice of penal mediation in the two countries and the backgrounds of these differences. The paper identifies some good practices and models for implementation of penal mediation in Argentina that might also be of interest to enhance penal mediation in The Netherlands, as more Dutch initiatives concerning penal mediation are likely to be expected. In the seventh chapter of this paper the Argentine Practices are compared to the Dutch Principles that have recently been drafted by a group of Dutch professionals in the field of restorative justice and penal law. One of the conclusions that are being drawn is that the Argentine models show the importance of loyalty to the mediation procedure and mediation techniques and a full authority as a mediator while carrying out victim-offender conversations. Also the proceedings, the outcomes of victim-offender conversations and the position of the moderator of victim-offender conversations benefit from the establishment of a genuine penal mediation process. Another conclusion is that state responsibility and involvement is vital in penal mediation as it has to be connected to the penal process and the consequences of pre-trail penal mediation have to be determined. The Argentine practice, as observed in the context of this paper in two Argentine organisations, also shows the importance of incorporating a ‘double check’ after the penal mediation, albeit marginal, by the public prosecution authorities or the judge. The provincial law of Buenos Aires offers a clear example of putting consequences to successful penal mediation, while respecting the special nature of penal mediation, its confidentiality and differences from the penal process. The Argentine practise for instance carefully makes a difference between participating in penal mediation and ‘pleading guilty’, while the Dutch Principles show a tendency to identify the participation in mediation as specie of pleading guilty. Both systems put the interest of avoiding re-victimisation in the first place. The Argentine system however seems more subtle and workable, especially in cases of minor offences and infractions. (author’s abstract)