Appunti Giustizia Riparativa 25p-part-1.pdf

Notes on Restorative Justice Constitutional Justice Catholic University of the Sacred Heart - Milan (UCSC MI) 24 pp. Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Down...

Notes on Restorative Justice Constitutional Justice Catholic University of the Sacred Heart - Milan (UCSC MI) 24 pp. Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected])  RESTORATIVE JUSTICE - General part + in-depth part (e.g. Colombia). First semester oral exam consisting of lectures and online handouts (no books) + 1 reading of your choice from the materials in BB. - Optional exercises + Restorative Dialogues with inmates (in Opera prison: one Friday and two Saturdays). - Thesis assigned in March 2022: vocation, originality and motivation. What is restorative justice? Restorative justice is an experience: a different way of doing justice, through the encounter with the other who creates conflict (living well with others, even in the relationship of 'brotherhood': the brother is the first other, the first enemy -> Gerald Haddad, Cain and Abel and Ishmael and Isaac). To cite a few examples: Israel vs. Palestine (in claiming the land as their own. Jerusalem is seen as the city where everything originates, in reality this has created division); e.g. South Africa, again one land for several peoples (white South Africans of Bohemian origin, architects of apartheid, call themselves Africans with their own language, Afrikaans. Then there are other Westerners, Christian and otherwise). Doors must be created to build 'bridges': men and women who create peace, despite violence, hatred and divisions, are seen as traitors. They represent a rupture, because they do not challenge the other, but make contact (face the enemy) -> e.g. former terrorists who meet the families of victims, are seen as traitors by the terrorists and as traitors by the families of the others (shake the hand of the person who killed your son). Alexander Langer wrote the Decalogue for Inter-ethnic Coexistence (1 November 1944): it enshrines the importance of mediators, bridge-builders, point and border jumpers, betrayers of ethnic competence, to create communication with the other. It is necessary to create 'self-criticism' on one's own side, but maintain one's roots to remain credible. NB. In front of those who attack, one defends oneself by attacking and vice versa. Video circle time (Agnese Moro, Valerio Morucci) Models of justice retributive (or absolute, because unrelated to a purpose) justice: the evil of a crime is repaid with the same 'blow' (responding to evil with evil). On a cross-cultural level, this is the way of doing justice (both in criminal relations and relations between peoples). One feels legitimised to return the blow, because the 'evil' is deserved (in the name of justice man has become cruel) -> punishment; justice; deserved treatment. With the approach of human rights, there was a need to legally sculpt the prohibition of humane, inhuman and degrading treatment in doing justice. The recognition of cruelty in doing justice is a progressive and slow recognition that depends on social sensitivity, culture and a slow juridical elaboration (criminological museum rome) -> e.g. US ban on death penalty through certain practices. It starts from the idea that the second evil must be proportionate to the first (code of amurabi 17th century BC "an eye for an eye, a tooth for a tooth"), but there is no method of measurement to commensurate the evil inflicted (e.g. International Criminal Court, e.g. Hanna Harendt "certain crimes cannot be forgiven, but neither can they be punished because they are out of scale") -> punishment is commensurate with the different emotional and subjective needs in societies (e.g. harsher punishments on work-related deaths because there are so many of them today). According to the theorists, the doing of justice must not be linked to social ends because justice is the end, not society -> Kant ('he who has killed must die') and Hegel ('violence nullifies violence'). Even today we still punish in response to the unjust, sometimes in aggressive forms. The problem with retributive justice is that it responds to a mimetic logic: the response to evil resembles what that response wants to combat (death penalty: I kill someone who has killed, 1 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected])  thus committing the same crime). On a social level, no punishment has ever annulled any crime, the only solution is to accept what has happened, looking to the future. Can the reproduction of injustice be called justice? Punishment oversimplifies: it identifies an offender, inflicts an afflictive response in the name of justice, and thinks everything is OK. Punishment changes nothing (the causes of crime, the causes of war, the causes of violence...), the causes are enormously complex. Today it is supported a lot in the USA, almost nothing in the West. Theories of prevention (or relative, because doing justice must be useful for society by deterring crime and containing crime): there is general negative prevention (aimed at everyone through deterrence: threatening to have a behaviour expected of the norm, through intimidation) and special negative prevention (to those who have already committed an offence, through neutralisation of the perpetrator through physical elimination e.g. death penalty, drone or prison). In both cases, force is used, which should not be the first choice in a democracy and always leverages an external agent (intimidation, incapacitation, etc.), and not through persuasion on motivational dynamics. What really conditions is the individual choice, not the threat (Cesare Beccaria, 1764 "to continue to increase penalties is criminogenetic"-> if housebreaking or bank robbery are punished the same, I'll do the bigger heist). These types of prevention work poorly because they are only aimed at rational offenders who 'have the prerequisite to commit crime' -> we thus cut out crimes/violences of conviction (e.g. suicide bombers) -> it does not work on the causes. There is a second form of prevention, the positive one, which is not based on force, but on consensus: general positive prevention (the norm does not impose, it demands. It is the individual's choice to follow it or not, but it opens a dialogue to think about why it is necessary - what are the benefits - to respect that norm -> there must be transparent, clear and institutionally placed systems of regulation. Respectful authorities are the most likely to be adhered to: people respect rules when they feel respected); special positive prevention through restorative justice: participating together actively and voluntarily, in resolving the reasons that led to the crime. Responses to the evil, to the crime, must be found through coherent ways (socialisation, social reintegration). The difference between positive and negative sanction is due to Norberto Bobbio (sanction: any response to disillusionment with expected behaviour. Punishment is not synonymous with sanction, but with afflictive or negative sanction, played on suffering). Positive sanctions are responses to what went wrong, but are not played on punishing, but on voluntary active doing (putting the person at the centre, actively thinking about positive sanction -> Conflict as property, by Nils Christie). NB. This does not mean that the use of form (detention or neutralisation) cannot be implemented, but that this must be the last change. Law as authority vs. law as something that "leads to respect between equal' (the rule always asks for something, it does not impose! It protects something, someone: motivated interests are able to enforce it. Protect not command). Whenever we repress, we are not trusting the members of the community. 2 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected])  Be careful not to confuse restorative justice as one that has to 'pay back' (free community work, repentance, etc.). Responsive regulation A theory of regulation that can be applied in any field. It was developed by John Braithwaite, an anthropologist working in criminal, environmental and restorative justice. It starts from the assumption that states should match, adapt to, the conduct of the recipients of regulations. Regulators should adapt to how individuals, and businesses, self-regulate before deciding whether or not to intervene. Before deciding how to respond, one must see how the regulated subject decides to behave. Regulatory systems mostly come into play when duties are not observed: it is too easy to abound with punishment or to respond to wrongdoing with sanction. For Braitwaite, the key thing is to have balance and priority: restorative justice is able to understand aspects that escape restorative authorities (stories, personal emotions...), which reason by objectivity. Restorative justice builds voluntary commitments to correspond to duties (abstaining from crime and respecting rules). It builds a society freer from violence, crime and where the whole legal system functions more efficiently and fairly. It introduces: - Flexible/dynamic legal system - Pyramid model (regulatory dynamism, in the use of stronger interventions depending on how the intended of the rule chooses to behave). It does not abolish the possibility of traditional coercive punishment but is built around the idea of a sufficient minimum of deterrence (force is the last tool to be used) - Clear rules that protect not command (tools for coexistence and not self protection of authority) and explain why they are placed. They are born out of democratic dialogue, they try to do the best they can (knowing that human beings are fallible and therefore may want to protect something that turns out to be wrong), they are open to dialogue about their content (they can change if they are considered to be wrong) In responsive regulation one starts with persuasion and self-regulation (observance by choice of the rule), if this does not happen, there is the request (in a polite, persuasive, dialogical manner) to adhere to the rule again. If the rule is obeyed, there is no need for coercion, coercion comes when persuasion and dialogue have not been carried out, but at that point it is as if it were self-inflicted (the order wants to use relational dialogical basis, but must correspond to the behaviour of the subject who forces him to escalate with obstinacy). 1. Capacity building: building democratic, responsible, active participation 2. Restorative: citizen re-entering the virtuous system 3. Deterrence: through threat (works only with rational subjects) 4. Incapacitation: the subject is not motivated, either in a polite manner or by threats 3 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) N.B. It is opposed to the logic of reward (do something and you are rewarded with sentence discounts, etc.), and does not give room to feel that justice is not done. It enters into the logic that consequences should be repaired, that injustice should not happen, and that if it does happen, that it should not be do it again. It is based on the logic that mistakes should be recognised, by those who made them themselves. E.g. Did you pollute? The law asks you to remediate (liability), if you do so there is no need for deterrence E.g. Persuasion, letter, civil penalty, criminal penalty, licence suspension and revocation. The more a society must punish, the more it must put in place guarantees for the regulated subject: right to defend oneself (inalienable and constitutional. There is a right to defend oneself, because justice is seen as punishment. No one is obliged to accuse himself). South Australia Environmental Protection Authority: the person to whom the rule is addressed must be encouraged to comply with it. From using force to engaging him in compliance with the rule. Even in the school world, justice is not contemplated: school regulations do not focus on principles, values to be protected (e.g. no mobile phone use -> the meaning is not grasped if the value of respect is not understood). A student should not be expelled at the first misdemeanour. In the international arena: restorative peacemaking, Security Council resolution, economic sanctions, political sanctions, use of force. Restorative diplomacy is done from below: involving people localities, needs, fears, etc.. A diplomatic approach from below is needed, otherwise divisions and hatred will remain and consolidate. Traitors to defuse violence On 4 April 1968, after the assassination of Martin Luther King, violence broke out. Martin Luther King had always been a promoter of peace, but after his death violent demonstrations broke out all over the USA, except in Indianapolis: a tough industrial city with few black people. Here violence does not erupt because Robert Kennedy takes the floor: he emphasises the importance of replacing violence with the effort of understanding. 4 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected])  He, too, is a victim because he lost his brother; he calls on the US to move towards unity and the feeling of justice, for those who suffer injustice, but not of hatred and division ('get out of the unity'): Methods of conflict resolution There are different methods of conflict resolution, each has lights and shadows, but they all aim to be realistic, not idealistic. Sometimes they are complementary: 1. Contentious judicial methods: there is always a third person (judge, neutral and expert. He answers and applies the law) who has the power to decide on the parties to the dispute (adversarial principle: there is an accusation and a defence) and impose his decisions (honour of proof: evidence-based). They completely disregard communication between the parties and their will (Immanuel Kant: determinative judgement. There is no collaboration between the parties). Leverages coercion (does not act on complexity: e.g. when more than one party is involved it does not know how to act -> can racism be made sense of? To historical pollution?) 2. Transactional negotiation methods (through negotiations, by states and between persons): agreement is reached through an exchange (of give and take: commutative justice), negotiation is conducted through the persuasive capacity that each party manages to achieve (sometimes there is imbalance, sometimes there is balance because the interests are compatible). The third party is not indispensable, as those who hold the power to resolve the dispute are the parties (both protagonists and their representatives e.g. states). The rules are never about the subject matter of the dispute, but about the procedure (how to negotiate? On what terms...? Who gives up what for what...?). There can be no real sanction, only an escalation of the conflict (e.g. war). They appeal to convenience. 5 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) 3. Responsive restorative methods (participatory, dialogic, deliberative, constructive): it is an equal model. There are the parties, third parties (who act as mediators) who, however, have n o power except to facilitate the meeting and recognition (cannot and should not guarantee a positive outcome). The parties act on the behavioural precept, recognition of the offence and future commitment (sometimes the future is enshrined in negotiations, which however arise from the encounter through recognition). They do not aim for a negotiation (what matters is never the outcome, but the willingness and truthfulness of the proceedings), but for a joint commitment to participation. They rely on persuasion, without bringing authority and punishment into play. They are methods that use creativity and find solutions from the meeting of needs. NB. Conflict resolution always aims at peace. To speak of peace, we can indicate positive peace and negative peace. Contentious methods lead to negative peace because they aim at cessation, but create division. Transactional negotiation methods sometimes require the use of force to 'cease fire' in conflicts, but even in this case peace is negative (it leads to truce, armistice, but not cessation of hostilities. It creates 'decent' relations, but not lasting ones). Restorative methods, on the contrary, lead to positive peace because they aim at reconciliation (through active listening, cooperation and joint commitment). Images of justice The clearest image is the figure of the scales with the sword and the band over his eyes, but there are no true images of justice (the judge must be impartial and not conditioned by images). Contentious judicial methods are poor in imagination by nature: they describe reality from something pre-determined and configure the response to the conflict in the light of a dualistic nature of judgement (you lose or you win -> acquitted/convicted..). Let us analyse three places: - Palazzo di Giustizia in Milan: the courthouse is from the Fascist era and contains many renowned works of art that 'speak' of justice (e.g. Justice with Attributes, The Tree of Justice, The Condemnation of Cain, Justice Armed with the Law, etc. see photo on BB) and of 'crushing' authority. - Supreme Court of Israel (Jerusalem): located next to the Parliament, it is a new building designed on the study of images of Jewish justice (human and general figures are not represented). It is developed geometrically: the coexistence of the straight and curved line is represented (in the Jewish cultural tradition there is the concept of law -> direction, as opposed to story -> curved line). The law gives the straight direction, but meets the story (curve) which must give the right direction (justice): if stories are forced to be straight, they give crooked results. In the courtroom, judge and parties sit in a circle. Importance is given t o light: above the judges' heads there are round glasses where natural light passes through, which serves to 'illuminate' the judge (justice must be done transparently and clearly). - Constitutional Court of South Africa: represents post-apartheid 'coexistence' (the buildings have colourful lettering, in the name of condemning the suppression of diversity) and the new constitutional democracy. It is located inside a former security prison. The artworks inside (there is a dedicated art gallery) represent human rights, their violation (pre and during apartheid) and their protection see photos on BB. 6 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) International and European sources on Restorative Justice The main sources are the UN (Security Council), the Council of Europe and the EU. They help us give definitions, indicate methodologies, standards to connect with the world (sources encourage, promote justice) and understand each other. Today in Italy, with the Cartabia reform, Law 134/2001, we are obliged for the government to issue a D.Lgls. that also indicates an organic discipline on restorative justice. UN, 'Basic Principles on the Use of Restorative Justice in Criminal Matters': issued in several versions (the latest is from 2016, but the clearest one on restorative justice is from 2002). It is a non- binding, soft law act. It defines a restorative pathway as 'any process in which the victim and the offender, and when appropriate other individuals in the community harmed by an offence, actively participate together in the resolution of important issues arising from an offence, through a facilitator. It may include mediation, programmes, circle time, etc.'. The UN speaks of the outcome as "an agreement reached as an outcome of a restorative process (e.g. socially useful activities, reparation, restitution...), with the aim of meeting the individual and collective needs and responsibilities of the parties, to achieve the reintegration of the victim and the offender" -> implies the use of democracy in doing justice. The latest version is from 2020. Council of Europe, 'Recommendation on Restorative Justice': issued in 2018 (replaces the one from 1999, which gave a definition of criminal mediation), concerns restorative justice in criminal matters. It is a non-binding, soft law act. In 2018, it defines it as 'any process that allows the offender of the offence, and the offender responsible for the offence, if they freely consent to it, to participate actively in the issues arising from the offence, thanks to the self-mediation of an impartial and competent third party'. The evolution of 2018, introduces restorative justice as a right and pushes it towards sensitive topics (e.g. sexual vigour, gender..). In particular: NB. In Europe in general, this interest is growing a lot (e.g. Scotland, Nation Plan: making restorative justice by 2025...; e.g. Georgia, translating the UN manual and training magistrates, lawyers etc. in a new form of justice). It favours the empowerment of the perpetrator and a recovery of the victim (justice of encounter not of reparation). This recommendation defines that each country should choose in which cases restorative justice can be an alternative to classical justice (e.g. minor offences...), and recommends that in cases where restorative justice cannot replace it, it should be complementary to it. It emphasises that it cannot be only for victims. Another source is 'Euopean Prison Rules', which states that even prisoners, if they choose, must be allowed to participate in restorative justice programmes. European Union, 'Victims Directive': defines restorative justice and t h r o u g h Article 12 guarantees victims access to restorative justice programmes. It is a binding act, but does not oblige states to do so. It defines 'any process which enables the victim and the offender to participate actively and freely in matters resulting from the offence with the help of an impartial third party'. UN Doha Declaration on the culture of legality, in 2020 justice entered into the united nations human development goals (sDgs) through four themes: education for justice, integrity/transparency of the judiciary, re-education/resocialisation/rehabilitation of prisoners, crime prevention (through sport). The goal is to have transparent, resilient institutions with humane, effective and clear justice systems (including through the prevention of juvenile delinquency). Restorative justice is the justice of the encounter, not of the reparation of the crime. We can therefore state: - It requires voluntary and free membership (there is no imposition. Everything is voluntary!). - Active and joint participation (accused/accuser etc.), in a free and confidential meeting - Presence of an impartial third party 7 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected])