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Mediation as Implementation of the Right of the Child to Legal Protection

© UNICEF / UKR / 0218 / 2009 / 1
Mediation with minors is conducted with the participation of parents or a trustee. Facilitating the development of a juvenile justice system able to provide legal protection to children and youth is one of UNICEF’s priorities in Ukraine.

It often happens that children who live in tough circumstances are inclined to conflict, aggressive and illegal behaviour, which leads to juvenile delinquency. Since imprisonment can have a negative impact on a child and his\her further development, society must create the conditions for offering that child another chance at a decent life. This is where mediation comes in handy.

“The justice system’s official position on punishment has made it necessary to look for other approaches in working with juvenile delinquents,” said Ms. Galina Ovcharova, a restorative justice specialist from the Kharkiv Public Centre ‘Youth for Democracy’, which, with the support of UNICEF and other international organizations, is implementing restorative justice projects in Kharkiv region. “The new approaches will give children who committed offences the right to be treated in a way that fosters self-esteem and respect for the rights and freedoms of other people.”We talked to two participants in a mediation session for juvenile delinquency: Sergey, 13, and Oleksandr, a businessman who has suffered from shoplifting in the past (names have been changed for ethical reasons). Mediation with a minor must involve the presence of one of the parents or a trustee.

“Sergey was not always a bad boy,” says his grandmother, 73. “My grandchildren came to me when Julia was two and a half and Sergey was one and a half. Their mother abandoned them and I have no idea where she might be. Their father, my son, is in prison and I took the children in because I was sure that it would be much better than a school for orphans.” She continues, “I watched the children grow. They were good at school. All our relatives helped me with their upbringing. But recently when they reached the so-called ‘awkward age,’ I had problems communicating with my grandson. He avoided talking to me, became rude and even showed disrespect. I noticed that Sergey had new friends that I had never seen before. He hung around with them until late at night. I tried to set him straight, but all for nothing. I couldn’t deal with his stubbornness.  Eventually he pulled away from me. I felt something was wrong, but I didn’t imagine he’d become a shoplifter.”

It turned out that Sergey’s new friends were older than he, and they forced him to participate in petty theft.  Finally the group was arrested for shoplifting. They’d stolen beer, a radio and disposable tableware worth more than 400 UAH. Mediation specialists got involved in the case at the investigation stage.

“Fatherless boys or boys who lose respect for their relatives or teachers can be easily manipulated by older children. It’s not easy to break that vicious circle,” says Mykola, the mediator who conducted the reconciliation process. “During mediation we try to arrange a dialogue between the parties, providing them an opportunity to speak and to be heard. We take human emotions and people’s concerns into account. Some people get the erroneous impression that we’re defending criminals, but really the mediator is neither advocate nor judge. His main task is to help the parties come to terms and to eliminate the tension between them. The key point is to outline a way of solving a problem and find a solution acceptable to both the victim and the offender.”

Investigation revealed that Sergey was not directly involved in the shoplifting. Rather, he worked as a lookout for the older boys. He admitted that he had mixed feelings about the whole affair. On the one hand, he understood that he was helping commit a crime. On the other hand, his team feeling kept him participating.

Sergey’s grandmother always tried to give him the best, but the street proved a strong influence. “I feel so ashamed in front of my neighbours and relatives,” she says. “I didn’t bring him up properly and I didn’t protect him against bad influences.”

Discussing the conflict at the mediation session, Sergey and his grandmother took practical steps for resolving it and for preventing similar incidents in the future. Sergey was sincerely sorry for what he had done: “I know that my actions made another person suffer and I’m really sorry about that and ready for any punishment.”

He apologized for his actions, broke into tears, promised to keep clear of dubious friends and expressed his desire to join the local kickboxing club. Oleksandr, the victim of the crime, turned out to be a former athlete himself, and gave the boy 200 UAH to join the sports club.

© UNICEF/UKR/0218/2009/2
The mediation process between Sergey, the offender, and Oleksandr, the victim, with the involvement of a professional mediator, was a success. The parties came to terms and resolved the conflict.

The result of the mediation was that the parties came to terms. Oleksandr wrote a petition for mitigating Sergey’s sentence. After the meeting, he thanked the organizers and in general seemed to appreciate the initiative. “I was agreeably surprised that we have such a thing in our country. It helped me to find my inner balance and to rid myself of my anger for those who did this. The mass media should publicize mediation.”
Sergey’s case recently went to court. Taking into account his repentance and Oleksandr’s petition, the court decided to place the minor in the care of his trustee, the grandmother.

Sergey and his grandmother were grateful to Oleksandr for his understanding and delicacy. Still, the elderly woman remains concerned about Sergey’s future. “It’s important to keep his behaviour under control and I can’t do it, given my age and that I need to take care of my granddaughter. I’m afraid that I’ll fail to keep Sergey off the streets. I don’t want to ‘lose’ him as I once ‘lost’ my son.”

Andrei Gaidamashko, UNICEF Ukraine Child Protection Officer, says, “There are a lot of children with similar problems. Mediation helps minors who committed an offence to avoid imprisonment if the offense isn’t serious.  A child with a criminal record finds it hard to get his life back on track. Successful mediation gives kids like Sergey a change at a better future. And work with such kids should continue after justice is administered. Once back in their habitual environments, such children run the risk of committing more crimes.”

Unfortunately, the current juvenile justice system in Ukraine is not yet fully adapted to provide children with their full rights to legal protection. UNICEF in Ukraine is therefore continuing to work on developing and implementing the components of a regime of legal protection, such as mediation and probation for juvenile delinquents, preventive work and social rehabilitation for children and systems for monitoring observance of the rights of children who have committed offences. In particular, to expand the network of mediation centres, UNICEF is working with the Ministry of Education and Science on possibly implementing mediation programs on the basis of Kharkiv’s general secondary school of social rehabilitation. With the assistance of school specialists, children like Sergey will be able to attend psychological and social rehabilitation courses that will help them avoid falling back into criminal habits and learn better social behaviour.



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