Max Planck Institute for Foreign and International Criminal Law

With the VOM investigation an area of criminal justice proceedings has been thoroughly and comparatively analysed. The area stands out through its different legal determining factors as well as an evident decline in how often it is applied to adult crimes. This decline is much higher in Austria than it is in Germany. However, on the basis of an extensive file analysis (judicial and mediation positions) it was not only judicial procedure that was examined - the study also questioned whether the different application numbers represented a purely quantitative phenomenon or whether the balance of cases also differed in a qualitative regard.

The collection method for the file analysis was co-ordinated to function with the various legal arrangements found in Germany and Austria and was adopted simultaneously in both countries. Altogether 161 variables were collected; of which 82 were allotted to the detailed case analysis (44 to the offender, 12 to the victim and 26 to the criminal offence), 27 to the content based analysis of the mediation itself (and, where applicable, its substitutes) and 52 recording statements of procedure from the public prosecutor in relation to valid (judicial) procedural conclusions. In Baden-Württemberg, 907 cases were examined, in Styria 1,118.

The results of the study demonstrate that in all comparative areas - in particular those relating to case structure, the practice of mediation and the judicial implementation of VOM orders – obvious differences exist. In Austria there were clearly more criminal offences against life and limb as well as property offences than in Germany. In Styria, these offences constituted, together with criminal offences against personal liberty, nearly 95% of all cases; in Baden-Württemberg they accounted for three quarters. On the other hand, honour crimes, which constituted more than 15% of criminal cases in Germany, were not at all present in Styria due to their characterisation as a private law action in Austria. Of particular interest was the fact that in Styria clearly more multi-person and/or group based mediation occurred than in Baden-Württemberg – on average in Styria 1.57 of offenders participated per ATA E case as opposed to 1.16 in the case of the TOA-E in Baden-Württemberg. Similar findings also existed for victim figures. Differences also emerged in relation to the type of underlying relationship that existed between the victim and the offender. In roughly a third of all cases the victim and the offender did not personally know each other at the time of the crime; in all other circumstances the criminal conflict occurred between persons who were already known to one another. In relation to these cases, in Styria conflict between family members and relatives dominated, whereas in Baden-Württemberg conflict most often occurred between vocational, business, and neighbourhood acquaintances. In both countries conflict with spouses only played a subordinate role.

The methods of mediation also displayed clear differences. In both countries the initiation of VOM began under different circumstances based on the varying degrees of co-operation and readiness of the parties involved. Differences also emerged in relation to the form of mediation, the circumstances involved and the results obtained. For example, in Austria more than 90% of victims and offenders declared that they were ready to co-operate; whereas in Germany this figure was only around three quarters. And although only 18% of all mediations in Styria were accomplished (i.e., arranged and completed), in more than half of the cases in Baden-Württemberg no personal meeting or direct discussions ever occurred. At the end of the process in Styria there were scarcely 10% of cases in which an agreement could not be obtained. In Baden-Württemberg this statistic was twice as high. When examining the satisfaction of offenders a further unfavourable figure was arrived at – in Styria 10% of the victims were not satisfied, in Baden-Württemberg this number rose to nearly 30%.
In terms of what affects the judicial decision to arrange VOM, the data shows that in Austria stricter requirements were placed on those offenders with previous convictions. There more than 87% of all offenders, at the time of the assignment, had no record, whereas in Germany this figure was 72%. Also in the case of offenders without a permanent record discernable differences were evident. In Austria nearly 60% of previously convicted persons had only one criminal record, in Germany there were only half as many. In relation to all offenders, in Germany there was an average previous conviction load of 1.03, in Austria 0.30. Of the persons with prior records, the Germans had on average 3.78 entries, the Austrians only 2.41. Different practices of the public prosecutor (with regards to content and organisation) could also be seen in relation to the autonomy of the conflict regulation. While in Styria mediation guidelines were uncommon, they were used in at least 30% of all mediations in Baden-Württemberg.

Differences are also apparent with regard to the final completion practices of the public prosecutor. However, in common is the fact that only a small number of cases (about 5%) are eventually indicted and precede to a regular criminal trial. However, if one adds orders of summary punishment, then in Baden-Württemberg three times so many cases are terminated with a formal sanction as in Styria. In Styria, with an allotment of 83%, divisional completion dominates, which, in Baden-Württemberg - distributed on several differently out-arranged procedural variants from the inconsequential to the accompanied conditions – only reaches a sum of 50% (genuine diversion). Roughly 5% of cases were, upon withdrawal of the charge on legal grounds, discontinued. Scarcely 20% were finally referred in Germany to private legal means - a variant, which does not exist in Austria and from which victims are frequently dissatisfied.

Altogether the findings permit two conclusions in relation to public prosecutor completion practice: on the one hand there exists a mirror image of the different success ratios in the two countries, on the other hand is the reflection of a variety of available formal completion alternatives – for example, in Germany up to 6 different variants of diversionary dismissals exist, in Austria only one. However, it was not just in such areas that differences resulted. The results can be evaluated in summary by acknowledging that the two countries have their own specific routines for handling TOA and/or ATA cases. Cultural differences may also play a part.