Victim-offender mediation (Täter-Opfer-Ausgleich, TOA) is the term used for out-of-court cooperation between the offender and the victim of a criminal offence, the aim being to bring about a settlement of the conflict caused by the offence through the offender’s efforts and at the same time to obtain a mitigation of sentence in the proceedings.
Victim-offender mediation (TOA) is dealt with in §§ 155a, 155b StPO and § 46a StGB. In juvenile criminal law there is the comparable § 10 para. 1 no. 7 JGG. The TOA is regarded as an incursion of social pedagogy into criminal law, intended to anchor the victim’s perspective more firmly in criminal proceedings. The victim is to receive reparation, and the offender is to be made aware of the consequences of the offence.
1. The basic idea behind the law
The basic principles of this form of “reparation through procedure” (so-called restorative justice) are voluntariness and participation. A victim-offender mediation therefore requires the consent of both sides, that is to say both of the “offender” and of the “victim”. Since a “communicative process” is to be set in motion, an accused who vehemently denies the allegations is in principle not suited to a TOA, because he does not show any “expression of the assumption of responsibility”.
2. Aims
The focus of the TOA is on working through the offence together, on consensual reparation between the accused and the injured party, and on preventing further conflicts. Reparation for the offence and settlement with the victim are expressly mentioned in § 46a no. 1 StGB. “Reconciliation” in the narrower sense, by contrast, is not required.
3. Procedure
In theory a TOA is possible at any stage of the proceedings, running parallel to the court proceedings, but it can only be recommended in genuinely “suitable cases” (§ 155a StPO). Where a case is suitable, the accused must be informed of this (§ 136 para. 1 sentence 6 StPO). The impetus for attempting a TOA may come from the offender or from the victim, but it may equally be initiated by the public prosecutor’s office or by the court under § 155b StPO.
4. Assessment
A distinction must be drawn between the victim’s side and the offender’s side.
For the victim, carrying out a TOA involves the risk of secondary traumatisation through renewed and very intense confrontation with the offender or through reliving the events of the offence. Particularly in the case of serious violent offences, it should therefore be considered very carefully whether one wishes to become involved in this form of “conflict resolution”.
For the “offender”, a TOA is only worth considering if he is prepared to make a full confession. In order to enter into this measure, the alleged offence must be admitted in full. There is therefore a considerable risk for the further course of the proceedings if the TOA fails and the accused subsequently wishes to distance himself from his admission of guilt.