Ausgangspunkt der englischsprachigen Arbeit ist die Überlegung, dass die Strafverfolgungspflicht jedes Polizeibeamten im Dienst und die Betonung strafrechtlicher sowie disziplinarrechtlicher Verantwortlichkeit die Fehlerkultur der Polizei hemmen. ‚Restorative justice‘, ein Ansatz der, der weniger auf die klassische Strafverfolgung, sondern auf Wiedergutmachung und künftige Vermeidung von Verletzungen individueller Rechte setzt, könnte einen entsprechenden Ausweg bieten. Vor diesem Hintergrund untersucht der Autor, ob der österreichische Menschenrechtsbeirat (MRB) eine solche Alternative bzw. Ergänzung zum bestehenden System der polizeiinternen Ermittlungen und disziplinarrechtlichen Verfolgung bietet. Der österreichische MRB war ein am österreichischen Innenministerium angegliedertes Gremium und paritätisch mit Mitgliedern aus der Exekutive und von Menschenrechtsorganisationen besetzt. Durch Besuche der Polizei vor Ort, der Beobachtungen von Einsätzen und konzeptionelle Arbeit beriet das Gremium das Innenministerium und veröffentlicht entsprechende Empfehlungen. Dabei fokussierte der MRB nicht auf das individuelle Fehlverhalten, sondern legte seinen Schwerpunkt darauf zu untersuchen, an welcher Stelle das System versagt hat. In der vorliegenden Masterarbeit werden deshalb die Empfehlungen und Veröffentlichungen des MRB mittels einer qualitativen Inhaltsanalyse unter dem Blickwinkel von ‚restorative justice‘-Elementen analysiert, mit dem Ergebnis, dass der MRB diese Prinzipien überwiegend verwirklicht. Durch seine besondere Konstellation und Vorgehensweise bewirkte der MRB unter anderem Gesetzesänderungen, Änderungen polizeiinterner Regelungen und Abläufe, außerdem konnte der MRB die Fehlerkultur und Kritikfähigkeit der Polizei positiv beeinflussen. Darüber hinaus wurde durch die Arbeit des MRB ein Paradigmenwechsel im Selbstverständnis der Polizei weg von der klassischen Eingriffsorganisation hin zum Verständnis einer Menschenrechtsorganisation unter dem Slogan „Polizei.Macht.Menschen.Rechte“ angestoßen.
Das Fazit der Arbeit: Menschen machen Fehler und auch Polizisten machen Fehler. Ein professioneller, also konstruktiv-kritischer Umgang mit diesen Fehlern ist in einem demokratischen Rechtsstaat eine grundlegende Herausforderung für Organisationen zum Schutz der Menschenrechte und insbesondere der Polizei.
Anhänge I-III (Originalquellencodierung) nicht im Lieferumfang enthalten!
Content
List of Abbreviations
List of Tables, List of Illustrations
1. Introduction
2. A theory of restorative justice
2.1 What is restorative justice?
2.2 What are restorative principles?
2.3 Research Question
2.4 State of research
2.5 Additional principles in the context of examining an organization
3. The Austrian Human Rights Advisory Board
3.1 The formation and status quo
3.2 Legal basis, Assignment, Authorities
3.3 Structure
3.4 First view on the outcome: studies by the MRB
4. Methodology and Process of the Research
4.1 Preparation
4.1.1 Method, Sample, Analyzers
4.1.2 Roles
4.1.3 Construction of categories
4.2 Examination and Processing
4.3 Quality criteria
5.Research results
5.1 Analysis of the categories
I. Process categories (category I)
II. Premise categories (category II)
III. Output categories (category III)
5.2 Analysis of the recommendations
5.3 Analysis of the observation of large-scale operations
6. Final discussion
6.1 The Austrian human rights advisory board – a restorative system?
6.1.1 Discussion of categories
6.1.2 Role of the MRB
6.1.3 Difference between classical restorative systems and the MRB
6.1.4 Conclusion: MRB as a restorative system
6.2 Practical implications and limitations
6.2.1 Discussion of the results
6.2.2 Discussion of the process
6.2.3 Discussion of the practical meaning of restorative principles
6.3 Future research
7. Conclusion
References
List of Abbreviations
illustration not visible in this excerpt
List of Tables
Table 1: Restorative principles according to Zehr.
Table 2: Restorative principles according to van Ness and Zehr.
Table 3: Principles of mediation in restorative justice.
Table 4: Process subcategoris part one.
Table 5: Process subcategories part two.
Table 6: Process subcategories part three.
Table 7: Process subcategories part four, Premise subcategories.
Table 8: Output categories part one.
Table 9: Output categories part two.
Table 10: Scale of assessment
List of Illustrations
Illustration 1: Three different questions to distinguish between criminal and restorative approaches.
Illustration 2: Social Discipline Window.
Illustration 3: Stakeholders in restorative justice.
Illustration 4: Restorative practices typology: types and degrees.
Illustration 5: Research process.
Illustration 6: Case origin of MRB's recommendations
Illustration 7: Recommendations of the MRB: Assistance
Illustration 8: Further recommendations of the MRB
Illustration 9: Implementation of the MRB's recommendations
Illustration 10: Numerical overview of observed large-scale operations
Illustration 11: Proportions of assessments of all large-scale operations
Illustration 12: Proportions of assessments of large-scale operations by kind
Illustration 13: Assessment of restorative systems by van Ness
Illustration 14: Assessment of the application of restorative principles by the MRB
Illustration 15: Difference of the focus between classical restorative systems and the MRB
1. Introduction
Human dignity is inviolable and it is the obligation of all state authorities to respect and protect it.[1] This first principle of the German constitution is pointing out Germany’s commitment to the origins of human rights. Therefore, it is a special obligation of the police force as a part of the executive authority. Every day police officers try to establish public and individual safety and in doing this, they interfere with some individual’s human rights. That is why the first article of the constitution needs to be the premise of all police actions.[2] Amnesty International emphasizes this expectation even more, as they refer to the police as the largest human rights organization.[3] However, some doubts have emerged about a universal internalization of this understanding among all police forces. For example, Amnesty International reports several severe infringements of human rights. They question if German authorities protect human rights in the manner required by international law.[4] The media often presents the same point of view. Recently the broadcast “Spiegel TV” showed a report with a topic that can be translated as ‘First beat, and then ask. Bavarian Beating Cops.’[5] In addition, the German federal police found itself receiving criticism regarding ethnic profiling.[6] Identifying human dignity as the central value of the constitution and hence, the official premise of all police actions does not seem to be enough. Obviously more must be done to assist police force advancement in professionalism than having a constitutional declaration or issuing general principles.
Kersten emphasizes a very important aspect regarding the misuse of police powers: the need for a functional and constructive culture of dealing with errors. He identifies a key factor that may explain why the existing process of dealing with errors might not work effectively. Kersten suggests police officers do not report or even cover for their fellow police officers because of the grave disciplinary and penal consequences.[7] As the principle of the mandatory prosecution of offenses forces the police to initiate criminal investigations in Germany[8], as well as in Austria[9], there is no process for handling reports of misuse of police powers within the authorities themselves in an informal way, when there is the slightest suspicion of a violation of a penal code. A restorative justice approach could offer a solution to this conflict area, a solution that Austria might already have.
Since 1999, Austria has had in place an exemplary institution, the Austrian Human Rights Advisory Board (German: Menschenrechtsbeirat, abbr. MRB). It was implemented in addition to the traditional organizations like internal investigations or prosecution to supervise the authorities regarding human rights aspects. As those classical supervision approaches were already covered, the MRB could possibly offer a kind of restorative solution. Therefore, it is the goal of this thesis to examine if this institution can be considered as a restorative system. Furthermore, the practical implications and limitations will be analyzed and discussed to allow a holistic view on the MRB, its work process and results. Finally, it will be shown if an institution like the MRB can be the solution to the authorities’ problems coming to terms with mistakes and help to gain more professionalism in implementing human rights aspects in police work.
2. A theory of restorative justice
This chapter establishes the essential theoretical foundation of this thesis. As the work of the Austrian Human Rights Advisory board is being viewed under the light of restorative justice, a thorough understanding of this “concept” is crucial. It will be shown that restorative justice is a very ambiguous term, used in several contexts with diverse meanings. Even the quoting of “concept” was made on purpose, as the common and scientific discussion describes restorative justice as everything between a philosophy and a scientific theory. While reading literature about restorative justice, one is often given the impression that the authors hold their understanding of restorative justice as a matter of course. Given the broad usage of the term,[10] the reader never really knows what kind of “concept” the author refers. Therefore, it is necessary to research and state a distinct definition and to identify the elements that are an indispensable part of restorative justice in the context of this research.
2.1 What is restorative justice?
The question „What is restorative justice?“ is a very ambitious one. The term restorative justice is used in many combinations “[…] covering everything from school bullying to genocide; spanning the globe from New Zealand to Northern Ireland, from Singapore to South Carolina […]“[11], often without explaining which understanding or shade of restorative justice is referred to. For instance, the book “The Promise of Restorative Justice”[12] provides several articles where restorative justice can be found in a broad variety of contexts, starting from “Restorative Politics”[13], “New Skills for Children and Schools”[14], to “Hope and Reconciliation with Grief”[15] and many more, without ever stating what exactly is meant by the term. Therefore, it is left to the readers’ knowledge about restorative justice and a non-theory driven interpretation to find out which aspects might be meant under the specific circumstances. McCold is correct when he states, “Without the guidance of research, a mythology develops around the use of restorative practices based merely on personal or political preferences.”[16]
Another challenge arises from the pure mass of restorative justice literature. Cunneen and Hoyle were “overwhelmed by the volume of literature surrounding restorative justice.“[17] They conclude that the “[…] development of a clear understanding of restorative justice is frustrated by this confusing application of the label to a variety of often disparate practices […].”[18] This ambiguous understanding of restorative justice cannot be the foundation of scientific work. Therefore, it is important to go back into the history of restorative justice, check its roots, and then focus on the scientific based literature to prepare a solid ground for this thesis.
Historical development of restorative justice
Restorative justice "[…] has existed since humans began forming communities."[19] It "[…] has been the dominant model of criminal justice throughout most of human history for all the world's peoples."[20] As Weitekamp asserts, in the Age of Enlightenment, which marked the step into a modern Europe, a number of scholars of that time were already proposing restorative justice. Cesare Beccaria laid „the groundwork for advocates of restorative justice“[21], Jeremy Bentham „stressed the necessity of taking care of the crime victim by means of restorative justice“[22], and Raffaele Garofalo „pointed out the benefits of restorative justice to society as a whole.“[23] However, even this journey into history sheds no more light onto the foggy term restorative justice. If thought of the term in its historical contexts, how can Weitekamp be sure that his understanding of restorative justice is the same as for instance, Bentham’s? Richards claims that this is not possible but also avoids stating an actual definition of restorative justice.[24] As a conclusion one can see, that the evolution of restorative justice has been more a process of discovery rather than invention.[25] Perhaps this is why finding an exact definition is so difficult. So let us finally address the recent scientific efforts to define restorative justice to gain more confidence.
In the 1990s, coming from different point of views like “activism, academia, and justice system”[26] the ‘concept restorative justice’ was assembled and described by authors such as Zehr, Wright as well as van Ness and Strong.[27] Reviewing the most common definitions one can discover two approaches. Marshall’s often cited definition shows the purist approach which focuses the communication process:[28] “restorative justice is a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.”[29] However, this setting describes only the process of how aggrieved parties should act and lacks the determining of the desired goals. Thus, for example Braithwaite and Strang, Zernova and Wright have preferred to emphasize outcomes or values to define restorative justice.[30] Bazemore’s and Wallgrave’s considerations tend in the same direction as they define restorative justice “[…] as every action that is primarily oriented toward repairing the harm that has been caused by crime.”[31] Their approach is considered as the maximalist viewpoint.[32]
Attempt of a definition
Finally, the prior discussion shows that there is no commonly held definition of the term. Reflecting on the different branches where restorative justice came from, it is unlikely there ever will be one that is accepted by all players in the field of restorative justice. Nevertheless, at the beginning of this chapter, a kind of promise was made. The criticism about restorative justice literature, that some authors do not state their understanding of restorative justice implies that this thesis wants do better. The fulfilling of this expectation will be made in two steps: first, the author will explain why he has his own definition and will state it. The second step will be to widen the focus away from a definition to clarify the contents of restorative justice.
There are two reasons for finding one’s own definition. On one hand, the normative force of the widespread approaches that are attributed to restorative justice lead to a need for a broader definition that does not only focus on crime.[33] On the other hand, the process, values, and the outcome need to be considered altogether as all the quoted authors have their point within their arguments. To provide a holistic definition, all dimensions need to be reflected.
This thesis’ author, as a native German, derived his definition from the origin of the word and therefrom deduced assumptions. ‘Justice’ is seen in its connotation as righteousness[34] not obligatory bound on formal codes but also including informal, non-written codices with a strong moral assignment. It can be described as a virtue, the firm and enduring will to grant everyone its right.[35] These guaranteed rights are inextricably connected to human dignity. ‘Restorative’ is understood in its denotation to rebuild, to make like new. So explained in a nutshell, restorative justice is any concept which gravely and continuously tries to restore or keep up the rights, especially and as a final line the human dignity, of all persons, which may be harmed or being endangered of being harmed in any kind of social process. This definition raises as many issues as it resolves. However, it has the advantage that all of the here described restorative justice concepts can be subsumed under this definition. It is intentionally open for interpretation and simultaneously defining the process, the values, and the outcome.[36] Applied on the author’s definition, the outcome is to restore or maintain the rights of all in a social process aggrieved parties. The process (deduced from human dignity) is to concede participation and responsibility to them and the central value is human dignity itself. As human dignity is the first and most important value of the German constitution,[37] it is a significantly coined term in Germany. Shortly it grants everyone the fundamental right of liability[38] and not being degraded to an object in any act.[39] On the downside, there is no internationally agreed content of the term human dignity,[40] and a new debate could be opened. But rather than continuing “[…] to define the term restorative justice […] it may be more helpful to think in terms of an analytical framework […]”[41] as shown within the next chapter.
2.2 What are restorative principles?
As Marshall suggests, restorative justice “[…] is not any particular practice, but a set of principles which may orientate the general practice of any agency or group in relation to crime.”[42] To find those principles is the goal of this chapter.
Principles by Zehr
At first, Howard Zehr’s point of view will be explained, as he is commonly considered as the first author who created an integrated concept of restorative justice.[43] He states three pillars, on which restorative justice is based upon:[44]
1. Harms and the corresponding needs, prioritizing the victim but also considering the community and the offender
2. The harm resulting in obligations to put the harm right by holding the offender accountable, but also including the community within this step.
3. Involvement of all who have legitimate interest in the offense and its resolution, as the victim, the offender, community members, or representatives.
A good idea of Zehr’s point of view can be found looking at his figure “Three different questions”[45]. It shows the basic questions, how to differ a criminal justice from a restorative justice system.
illustration not visible in this excerpt
Illustration 1: Three different questions to distinguish between criminal and restorative approaches.
Zehr, as well as the authors listed below, link restorative justice as an alternative, additional, or to-be-combined approach to the criminal justice system and therefore they consider crime as the starting point of the system.[46] This strict interpretation does not meet reality where restorative principles are applied on much broader social problems, almost any kind of deviant behavior. It “[…] restricts the scope of restorative justice to the criminal justice area and thereby overlooks the undeniable fact that restorative justice values and processes have also been applied in a variety of other contexts that may have little or nothing to do with the resolution of specific criminal offenses.”[47] Therefore and consequently following the author’s definition of restorative justice, any social dispute needs to be an adequate starting point. As an essence the important principles according to Zehr are:
illustration not visible in this excerpt
Table 1: Restorative principles according to Zehr.
Principles by van Ness
The next two approaches come into consideration, as both are promoted as being capable of testing a concepts’ grade of restorative justice. Van Ness suggests a framework,[48] which he claims is capable of “Assessing the restorative character of a system […].”[49] The components of his approach are listed below (key elements in parentheses):[50]
1. Encounter - the Process: the foundation of encounter is that the parties meet in person, under some circumstances with a surrogate (meeting). The next three elements can be clustered as a communication category. The parties talk about the incident, its effects, and how to handle the harm (narrative); they show emotions as it contributes to the process of understanding (emotion), and by doing this they are helping each other to understand the complete circumstances and consequences (understanding). In conclusion the parties come to an individual agreement designed to handle their specific situation (agreement).
2. Amends - the Outcome: van Ness suggests four possible amends, which are voluntarily undertaken by the offender because of the agreement. The first one is a genuine apology (apology). Another way is returning the property or paying the victim (restitution). Furthermore, there is an agreement not to do it again and if applicable, including preventive measures (changed behavior); and lastly, there is the possibility to voluntarily go beyond the actual compensation (generosity).
3. Reintegration: The first element is to treat both, victim and offender, as full and respected members of the community (respect). Both parties might have suffered real injuries through the crime or the criminal justice process, so they need help dealing with that (physical / material assistance). To deal with the additional emotional and moral harm, appropriate assistance is needed there as well (moral/spiritual direction).
4. Inclusion: van Ness connects restorative justice with crime and therefore with a subsequent criminal justice process. He argues that inclusion is the most important value, as it grants the opportunity for meaningful participation between the aggrieved parties. It starts with an invitation to the affected parties to participate (invitation). During the process itself, the prosecution and the defense are also invited to propose their interests (acknowledgement of interests). Consequently, the judge, prosecution, and the defense should accept the suggested approaches of amends (Acceptance of alternative approaches).
The findings of this approach which go beyond Zehr’ principles are being shown in the table below. However, considering van Ness’ reintegration category, one aspect seems missing. Harm might need more assistance than material or spiritual assistance. For example, the victim may need medical or psychological aid by therapists or doctors. So this aspect will be also added to the list of principles.
illustration not visible in this excerpt
Table 2: Restorative principles according to van Ness and Zehr.
Principles by McCold and Wachtel
Another important approach to the principles of restorative justice is presented by McCold and Wachtel, as they attempt to validate their theory empirically.[51] They propose that restorative justice is built upon “three distinct but connected causal structures.”[52] These structures, displayed in illustrations 2-4, offer some advantages. As they were illustrated by the authors, they allow one to understand elements of restorative justice at a glance. Additionally, they define several terms and scales that help to classify practical findings within restorative justice.
Abbildung in dieser Leseprobe nicht enthalten
Illustration 2: Social Discipline Window.[53]
1. The social discipline window: this figure shows the possible methods on how to maintain common social standards. The two crucial variables are control (“act of exercising restraint or directing influence over others”[54] ) and support (“provision of services intended to nurture the individual”[55] ). Depending on their value, one can differentiate between four approaches: “NOT”, “FOR”, “TO” and “WITH” which need some short explaining. They refer to the offense/offender: society does not do anything to respond (neglectful), does everything for the offender (permissive), does things to (punitive), or works with the offender (restorative).
2. Stakeholder needs: this figure shows the stakeholders in restorative justice. The circles represent the strength of the affection by injuries, needs, and obligations. Victim and offender are affected the most, stakeholders in the outer rim least. Furthermore, one can divide the stakeholders in direct and indirect ones, each group with different duties in the process. The indirect stakeholders should support and facilitate the process in which the direct stakeholders can determine the outcome for themselves. This active engagement, expressing their feelings and thereby their empowerment, is their assignment.
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Illustration 3: Stakeholders in restorative justice.[56]
3. Restorative Practices Typology: this third figure is built upon the participants of the process as shown in illustration 3. Each of the stakeholder-related circles lists possible processes. Depending on the intersections, one can see restorative characteristics: partly, mostly, and fully. Examining this figure, one can conclude that the processes in which all three parties are involved can be considered as fully restorative.
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Illustration 4: Restorative practices typology: types and degrees.[57]
Melting all the figures down to their core, McCold’s and Wachtel’s restorative key element is the involvement of stakeholders. The more adjusted to their needs and the more actively involved, the more a system can be considered as restorative.
In conclusion, there are no new items added to the principles, however, the authors show the range of the principles that are important for the analysis of practical findings. The next step is to define the research question to link the findings about restorative justice with an practical assessment.
2.3 Research Question
As introduced, restorative justice can be considered as a capable instrument to solve conflicts, which focuses on restoring harm instead of punishment. Considering the recent accusations of police misuse of force in Germany, the threat of punishment appears to be a large obstacle preventing honest and open reflection. Therefore, a restorative justice approach might offer a possible solution.
Since 1999, the Austrian Human Rights Advisory Board observed the authorities compliance of human rights. It was established to operate parallel the already existing institutions that prosecute violations by authorities: internal investigation departments, state attorneys, and administration courts. This shows that the classical approach to process infringements was already covered and implies that the MRB was designed to walk an additional path. Therefore, the MRB could be a kind of missing link in adding restorative elements to the classical legal situation. To find out, if this conclusion is correct and what implications such a restorative system might have, the following questions need to be researched:
a) Can the Austrian Human Rights Advisory Board be considered as a restorative justice system?
b) What are the practical implications of a system like the Austrian Human Rights Advisory Board?
c) What is the measurable output of the Austrian Human Rights Advisory Board and is the Austrian Human Rights Advisory Board capable of improving the behavior of police authorities in relation to human rights?
2.4 State of research
The number of articles regarding restorative justice is countless. Therefore, it is necessary to focus exactly on the research question to examine the state of research. Researching the correlation between restorative justice and police accountability, there are few academic articles. McLaughlin and Johansen propose the application of restorative justice principles to the police complaint system.[58] They introduce several advantages and disadvantages of such a system, concluding that although negative side effects need to be taken into consideration, the constructive, participative elements offer unprecedented possibilities.
In 2002, the U.S. Department of Justice published a guideline about mediating citizen complaints against police officers. Walker et al. state the advantages of this kind of handling complaints, also addressing critical key issues.[59]
Young et al. present the results of a study about the informal resolution of complaints against the police in England. The findings implicate, that the results of restorative processes can achieve moderately better results than conventional ones.[60]
The shown research can contribute valuable thoughts to the discussion but they do not fit the research question, as the focus of the MRB is not to handle complaints but to investigate possible infringements of human rights and to deal with them. Therefore, the topic of the research in its narrower sense is unexplored.
2.5 Additional principles in the context of examining an organization
Principally, there is no difference regarding restorative principles, no matter what subject is being evaluated. However, there are additional aspects that need to be considered when examining an organization.
In its practical work, the largest assignment of the MRB is to fulfill the duties of a National Prevention Mechanism. Its predominant task is to visit places where people are being held in custody. They talk with them and try to find out how they were treated according to their human rights. If they discover any irregularity, they raise the issue to the Department of the Interior and postulate or negotiate a proper solution.[61] On the first view, they act as a mediator. Therefore, the criteria of quality mediation need to come into consideration. They are the premise for an authentic communication process, which again, is the requirement for a genuine restorative involvement. Referring to the last chapters, mediation as a process can be allocated in Zehr’s and McCold’s “involvement” and in van Ness’ “encounter”. Vanfraechem states three quality criteria:[62] At first, the neutrality of the mediator needs to be guaranteed. The mediator does not take a side, tries to bring the parties together, guides the communication, and takes care for a respectful process. Secondly, the participation should be on a voluntary basis. The third criterion is confidentiality of the mediation. On one hand, police in a democratic state like Austria is a part of the state’s executive authority; it is subject to public control and therefore has no legal right to confidentiality on matters of accountability. On the other hand, the confidentiality of the victim is granted by Article 20 and 21 of the OPCAT-Protocol. How far this guarantee has been realized needs to be examined.
In his article about the the UN Basic Principles on the Use of restorative justice,[63] VanNess makes an important addition to Vanfraechems key principles. VanNess maintains that a mediation organization should recruit its personnel “from all sections of society and should generally possess good understanding of local cultures and communities.“[64] Furthermore, the staff should be trained before starting facilitation and they should receive continuing education.[65]
Summarizing these arguments, the following principles need to be considered:
illustration not visible in this excerpt
Table 3: Principles of mediation in restorative justice.
As the last three subchapters have shown, finding consensus on the key principles of restorative justice has been quite challenging. However, as a result of this research and argumentation, there is a common list of items that can be used to evaluate the work of the MRB under the light of restorative justice.[66] To conclude this process, there is no better quotation than van Ness’: “If, for the sake of the argument, we accept these values and elements as the components of a restorative system […].”[67] The next step is to get some basic knowledge about the object of the research: the Austrian Human Rights Advisory Board.
3. The Austrian Human Rights Advisory Board
This chapter shows the Austrian Human Rights Advisory Board’s history of origins, its assignment, legal basis, its structure, and functioning. Additionally some first findings of the MRB’s output will be shown. The goal is to facilitate a profound understanding of the institution.
3.1 The formation and status quo
Two reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) about their visits to Austria in 1990[68] and 1994[69] recommended the Austrian government to establish an independent control mechanism supervising the treatment of detainees. The planning of an appropriate institution was accelerated in 1999 in cause of a tragic event. The deportee Marcus Omofuma died constrained and gagged on his flight to Sofia.[70] As a result, the Austrian human rights advisory board was founded in the very same year. Yet, its assignment was not only limited to monitor the conditions of persons in custody but also expanded to oversee the actions of the national police authorities under a human rights point of view.[71]
Since July 2012, after twelve years of work, the MRB no longer exists in the way it was founded. It once was an organization joined to the Austrian Department of the Interior. With the change of the Austrian constitution, effective July 1, 2012, the Austrian Volksanwaltschaft’s[72] function, originally assigned to control the federal, the states’ and the communities’ administration[73], was extended to take over the duties of a National Prevention Mechanism according to the Optional Protocol to the Convention against Torture (OPCAT).[74] With this process, the MRB was transferred to a consultative body of the Volksanwaltschaft. In the end, this step was inevitable as the MRB was repeatedly criticized by the CPT regarding its assignment as a national prevention mechanism. They stated, “[…] that certain aspects of the Advisory Board’s status diminish its effectiveness. In particular, the Advisory Board cannot be seen as being truly independent, to the extent that its activities are financed by the Federal Ministry of the Interior. It is the Federal Minister of the Interior who selects three of the Board’s members, chooses the NGOs represented on the Board, and can terminate the Board members’ appointment. Further, because the Advisory Board’s jurisdiction is limited to detention facilities under the Federal Ministry of the Interior, the Board cannot follow cases through to a logical conclusion, i.e. interview detained persons after their transfer to prison. Therefore the CPT invited the Austrian government to review the status of the Human Rights Advisory Board, in the light of the above remarks.”[75] Nevertheless, this criticism focused on the assignment as a national prevention mechanism regarding to OPCAT and not the MRB’s duty to oversee the use of police powers under the light of human rights. However, this restructuring provides an opportunity to examine an completed and past period.
3.2 Legal basis, Assignment, Authorities
The legal basis of the MRB’s foundation and function were §§ 15 a-c, 93 SPG. Additionally, the Secretary of the Interior enacted rules of internal procedure.[76] On this basis, the MRB itself released its guidelines for structure and methods of operation.[77] From an overall assessment of the relevant codes, the MRB was equipped with following duties and powers:
1. To oversee and review the subordinated authorities of the Department of the Interior concerning the compliance of human rights.[78] For that purpose, the MRB was empowered to visit every police agency as well as every location where administrative authority or force is being used.[79]
2. Furthermore, the MRB could either, on its own initiative or at the instigation of the Secretary of the Interior, suggest improvements and advise him concerning the protection of human rights.[80] Therefore, besides recommendations from inspections, the MRB was able to perform conceptual work.[81]
Additionally §93(II), s. 3 SPG obliged the MRB to present an annual report of its recommendations.
In this context, it is important to point out, that the MRB neither was founded to be an internal investigation unit nor any kind of ombudsman, where everybody could file a complaint, but only to fulfill the above stated assignment.
3.3 Structure
The MRB had eleven members and the same number of substitutes. They were appointed for three years by the Secretary of the Interior. The chairperson needed to be a member of the Austrian constitutional court or licensed to teach constitutional law at an Austrian University.[82] The other members were from different organizations, for example from the Department of the Interior itself, from the Department of Justice, the federal chancellery or Austrian NGOs like “Volkshilfe”, “SOS Menschenrechte”, “Caritas”, “Diakonie”, and “Verein Menschenrechte”.[83]
To fulfill the duties in all Austrian regions, six commissions, each within the jurisdiction of the regional appeal courts, were established. As the chairs of commissions, the MRB appointed widely recognized persons in the field of human rights.[84] The minimum five, maximum eight, members needed to have expertise in medicine, psychology, psychotherapy, sociology, social work, public administration and law. The Secretary of the Interior appointed the chair and the members of a commission based on the MRBs recommendation. To balance continuity and renewal, every two years the half of the members was exchanged.[85]
3.4 First view on the outcome: studies by the MRB
The MRB fulfilled its duty to oversee the Austrian authorities concerning human rights and to suggest improvements by fieldwork and publishing their findings in its annual reports. Beyond that, the MRB ordered and conducted several studies to approach possible problems from an integrated point of view. Those studies and its most important findings will be shown in this subchapter, as they are not explicitly included in the analysis but can give a general overview on the MRB’s work. Important findings of the studies and special reports were inherited as recommendations into the annual reports and were therefore included in the analysis.
The first special report, published 2001, focused the special circumstances concerning the detention of women. As a result, the MRB published twenty-three recommendations and postulated improvements regarding constructional aspects, the sanitary accommodations, and the personnel structure, especially criticizing the lack of female correctional officers.[86]
Two special reports were published in 2002. One analyzed the informational deficits of detainees, resulting in thirty-two recommendations. One of which focused on the standardized allocation of all necessary information, available in several translations, so that arrested persons were actively informed about their situation and every measure taken.[87] The second report about the medicinal care of detainees led to fifty-three recommendations. Amongst other things, the MRB demanded at least one paramedic per penitentiary, improvements concerning the continuous documentation of the health status and psychological assistance.[88]
In 2004, a special report about the use of force focused on the trained control techniques of police officers and possible death through suffocation. Improvements concerning the training, sensitization, documentation and debriefing were proposed.[89] A very extensive publication dealt with the use of language. Based on an academic study[90], the MRB approved six recommendations. These six recommendations included sensitization regarding the use of discriminating language and a mandatory integration of this topic in academy classes as in continuing education programs.[91] Another report addressed the handling of police complaints. Primarily it demanded a human rights standards appropriate institution to investigate the unlawful use of force.[92] This special report was amended in 2007 by a publication of the MRB, describing the international and national frameworks, analyzing the actual situation in Austria and recommending an independent investigation unit.[93] In 2010, the MRB picked the topic up again and maintained an external investigation unit was needed. This time they proposed a practical concept, which the MRB itself called ambitious and visionary. Briefly, they suggest the foundation of an authority investigating any incident of the misuse of police force. This institution should be granted by law not to be bound to any directives. In case of relevance, the result of its investigation could be turned over either to the prosecutor or disciplinary authorities.[94]
In a special report about international standards on human rights defenders in 2005, the MRB picked up criminal investigations against two of its members and demanded the dismissal of any measures against human rights defenders if not based on solid ground.[95] Another report focused on police education. The MRB explicitly praised the recent developments concerning the offered tutorials and workshops. Potential improvement could be made in motivating officers to participate in such programs and in focusing on executive officers regarding their key role to human rights conform operations.[96]
A special report from 2008 detailed improvements for detainees awaiting deportation in the areas of actively providing translated information as well as effective legal counseling.[97]
In 2009, the MRB published a report about the conditions of detention. This catalogue considered international recommendations and suggested improvements concerning the accommodations (e.g. cell size, overall condition of the cell), provisions (e.g. clothes, food, access to prison yard) and contact to the outer world.[98]
The last special report, published in 2012, attended to the victims of human trafficking. It demanded a stronger focus on the interests and needs of victims in actual casework as well as a general sensitization through education.[99]
4. Methodology and Process of the Research
This chapter presents the methodological approaches and steps of the research, which are mainly based on Mayring’s theories on qualitative research.[100] The workflow, including its associated chapters, is shown at a glance in illustration 5.
Abbildung in dieser Leseprobe nicht enthalten
Illustration 5: Research process.
4.1 Preparation
4.1.1 Method, Sample, Analyzers
The first step of any research, the definition of a research question based on a theoretical foundation, can be found in chapter 2. To approach the primary research question „Can the Austrian Human Advisory Board be considered as a Restorative Justice System?“ it is necessary to examine if restorative justice principles are being fulfilled through the MRB’s work. The MRB’s annual reports reveal its activities for each year: they document the work process and the output as well as the premises, either explicitly or implicitly. Therefore, they contain the information required for an accurate sample. The adequate scientific method for an appropriate analysis of this approach is the content analysis. This method, and its corresponding content structuring technique, allows filtering theory-led developed categories from a sample.[101] To increase the conformability, the process of this research is being explicitly described.
A quantitative approach would not help to understand the fundamental work procedures of the MRB. Therefore, the main part of the analysis is based on a content analysis. However, to gain further information on the results of the MRB’s work, the recommendations and the observations of large-scale operations are being examined and clustered by additional criteria. These are based on the theory-led categories and further developed during and after the material flow, using a grounded-theory approach.[102] As such, the qualitative approach is being complemented by a quantitative one.
The sample consists of twelve annual reports from 2000 to 2011.[103] The closing report from 2012 is not taken into the sample, as it is mainly a comprehensive review of the MRBs older reports and therefore cannot be considered as an annual report. The annual reports by the commissions, which can be found in the appendix of the MRB’s annual reports, are not part of the analysis as they contain huge overlaps to the council’s report.[104]
Every semantic context is determined as an analyzer. Accordingly, a definition and a detailed description of its practical implementation during the material flow can be found in appendix I, part B.
[...]
[1] Cf. Grundgesetz für die Bundesrepublik Deutschland (German constitution), article 1(1).
[2] Cf. Polizeidienstverordnung 100 (German Police Regulations No. 100), section 1.1; additionally stated as the general principle of the Bavarian police, cf. Bayerisches Staatsministerium des Inneren (Ed.): Leitbild der Bayer. Polizei - Handlungs- und Orientierungsrahmen für die Zukunft (retrieved 10.06.2013).
[3] Cf. Amnesty International (Ed.), 2010a, p. 14.
[4] Cf. Amnesty International (Ed.), 2010b, pp. 25–69, 2004, pp. 10, 35-82.
[5] Cf. SPIEGEL ONLINE (Ed.): Erst schlagen, dann fragen: Bayerische Prügelpolizisten (retrieved 13.02.2013).
[6] Cf. SPIEGEL ONLINE (Ed.): Bundespolizei. Klagen über Rassismus (retrieved 13.02.2013).
[7] Cf. Kersten, 2013.
[8] Cf. §163 (1) Strafprozeßordnung (code of criminal precedure, German law).
[9] Cf. §2 (1) Strafprozeßordnung 1975 (code of criminal precedure, Austrian law).
[10] Cf. e.g. Shapland et al., 2011, p. 5.
[11] Cunneen/Hoyle, 2010, p. 101.
[12] Dussich/Schellenberg (Ed.), 2010.
[13] Wint, 2010, p. 145.
[14] Liebmann, 2010, p. 163.
[15] Redfern, 2010, p. 227.
[16] McCold/Wachtel, 2002, p. 110.
[17] Cunneen/Hoyle, 2010, p. 101.
[18] Cunneen/Hoyle, 2010, p. 14.
[19] Weitekamp, 1999, p. 81; cf. Zehr/Gohar, 2003, p. 10.
[20] Braithwaite, 1999, p. 2.
[21] Weitekamp, 1999, p. 90.
[22] Ibid.
[23] Ibid., p. 91.
[24] Cf. Richards, 2004, p. 8.
[25] Cf. McCold, 2000.
[26] Daly/Immarigeon, 1998, p. 21.
[27] Cf. Zehr, 1985, 1990; cf. Wright, 1991; cf. van Ness/Strong, 1997.
[28] Cf. Vanfraechem, 2009, p. 40.
[29] Marshall, 1999, p. 5.
[30] Cf. Braithwaite/Strang, 2001; cf. Zernova/Wright, 2007.
[31] Bazemore/Walgrave (Ed.), 1999, p. 48.
[32] Cf. Vanfraechem, 2009, p. 40.
[33] cf. Dignan, 2005, p. 4.
[34] Cf. Colquitt et al., 2001, p. 425.
[35] Cf. Fischer: Was ist Gerechtigkeit? (retrieved 24.01.2013).
[36] So-called „multi-dimensional“ definition, cf. Shapland et al., 2011.
[37] Article 1(1) German Constitution: „Die Würde des Menschen ist unantastbar“, literally translated: Human dignity is untouchable (meaning inviolable, but even with a stronger direction).
[38] Cf. Bielefeldt, 2008, p. 34.
[39] Cf. Schmidt-Bleibtreu et al. (Ed.): GG. Kommentar zum Grundgesetz, p. 111.
[40] Cf. McCrudden, 2008.
[41] Dignan, 2005, p. 5.
[42] Marshall, 1999, p. 5.
[43] Cf. Zehr/Gohar, 2003, p. I; cf. Shapland et al., 2011, p. 5; cf. Marshall, 1999, p. 29.
[44] Cf. Zehr/Gohar, 2003, p. 23.
[45] Ibid., p .20.
[46] Cf. Zehr/Gohar, 2003, p. 21; cf. McCold/Wachtel, 2002, p. 1.
[47] Dignan, 2005, p. 4.
[48] Cf. van Ness, 2002, p. 2.
[49] Van Ness, 2002, p. 6.
[50] Cf. ibid., pp. 3–6.
[51] Cf. McCold/Wachtel, 2002, pp. 116ff.
[52] Ibid., pp. 112ff.
[53] Cf. ibid., p. 113.
[54] Black, 1990, p. 329.
[55] Ibid., p. 1070.
[56] Cf. McCold/Wachtel, 2002, p. 115.
[57] Cf. McCold/Wachtel, 2002, p. 116.
[58] Cf. McLaughlin/Johansen, 2002.
[59] Cf. Walker et al., 2002.
[60] Cf. Young et al., 2005.
[61] Cf. Chapter 3.
[62] Cf. Vanfraechem, 2009, pp. 43–45.
[63] Cf. van Ness: Proposing Basic Principles on the Use of Restorative Justice: Recognizing the Aims and Limits of Restorative Justice (retrieved 10.06.2013).
[64] Ibid., p.15.
[65] Cf. ibid., p.16.
[66] Cf. Chapter 4.1.3.
[67] Van Ness, 2002, p. 6.
[68] Cf. Council of Europe (Ed.), 1991.
[69] Cf. Council of Europe (Ed.), 1996.
[70] Cf. Paar, 2007, p. 453.
[71] Cf. Menschenrechtsbeirat im Bundesministerium für Inneres (Ed.), 2002, p. 3; cf. §15a(I), s. 2 Bundesgesetz über die Organisation der Sicherheitsverwaltung und die Ausübung der Sicherheitspolizei (SPG; English: Police law).
[72] freely translated: Attorneys of the public
[73] Cf. §23 (IV) Bundesgesetz über die Volksanwaltschaft; cf. Menschenrechtsbeirat beim Bundesministerium für Inneres (Ed.), 2012a, p. 9.
[74] Cf. §148a et seqq. Bundes-Verfassungsgesetz (B-VG); cf. Menschenrechtsbeirat beim Bundesministerium für Inneres (Ed.), 2012a, p. 9.
[75] Council of Europe (Ed.), 2005, p. 15, 2010, p. 18.
[76] Cf. Geschäftsordnung des Menschenrechtsbeirates MRB-GO, in der Fassung vom 07.09.2011.
[77] Cf. Richtlinien für Struktur und Arbeitsweise der Kommissionen (as this document is no longer publicly available, it is attached as appendix IV).
[78] Cf. §15a(I), s. 2 SPG.
[79] Cf. §15c(I), s. 1 SPG.
[80] Cf. §15a(I), s. 1, 3 SPG.
[81] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres (Ed.), 2002, p. 7.
[82] Cf. §15a(II) SPG.
[83] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres (Ed.): Menschenrechtsbeirat (retrieved 26.10.2011).
[84] Cf. Menschenrechtsbeirat im Bundesministerium für Inneres, 2002c, p. 10.
[85] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres (Ed.): Organisation / Zuständigkeit (retrieved 26.10.2011).
[86] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres, 2001a.
[87] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres, 2002a.
[88] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres, 2002b.
[89] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres, 2004a.
[90] Cf. Brechelmacher/Gstettner, 2003.
[91] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres, 2004b.
[92] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres, 2004c.
[93] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres, 2007b.
[94] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres, 2010a.
[95] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres, 2005b.
[96] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres, 2005a.
[97] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres, 2008.
[98] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres, 2009.
[99] Cf. Menschenrechtsbeirat beim Bundesministerium für Inneres, 2012b.
[100] Cf. Mayring, 2008, pp. 84, 89ff. , 2002, pp. 114–121.
[101] Cf. Mayring, 2008, p. 89 , 2002, pp. 114 f.; cf. Diekmann, 2007, pp. 607 ff.
[102] Cf. Mayring, 2002, p. 103; cf. Strübing, 2008, p. 13.
[103] Detailed reference cf. source of information: appendix I, part A.
[104] The common annual report of the commissions are part of the MRB’s annual reports since 2003. However within the MRB’s annual reports, there is a large part called “commissions of the MRB” where the aggregated information of commissions can be found.
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- Bernd Bürger (Author), 2013, The Austrian Human Rights Advisory Board, Munich, GRIN Verlag, https://www.grin.com/document/303297
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