Appunti Giustizia Riparativa 25p-part-2.pdf

- Constructive outcomes, such as making active voluntary commitments for the future - Consensual nature - The legal part is the precept, not the sanction - Importance of the victim, but not its centrality (restorative justice is not only victim justice) - Reparation as a result, not as a r...

- Constructive outcomes, such as making active voluntary commitments for the future - Consensual nature - The legal part is the precept, not the sanction - Importance of the victim, but not its centrality (restorative justice is not only victim justice) - Reparation as a result, not as a retribution (punishment). It makes the doer feel respected, not degraded. It is not only compensation for damage Programmes and principles according to international and European sources There are three macro-types, according to the 2006 UN directive: 1. Mediation, born as offender and victim. In general it is the meeting between the parties involved. This is referred to as direct or indirect mediation (parties called surrogates participate e.g. victim of crime committed by unknown persons, meets one who committed that crime). 2. Conference, they broaden the meeting to other protagonists (family or group conference e.g. families of the configurants, social groups to which the configurants belong e.g. supporters, political, religious groups etc.). they are important because belonging to a group that chooses to participate, signifies a commitment to a more peaceful future 3. Circle, may involve the whole community in the sense of neighbourhood, city, peoples... includes particular characters relevant to the community (e.g. mayor...) NB. Restorative justice can use all three programmes, or only some (first one then the other etc.). Who are the mediators? Impartial figures, but capable of bringing all those involved together, without bargaining, respecting the dignity of each participant. They must know the local cultures and communities (principle 19 of the 2002 UN directive) and be trained. They can and must come (Council of Europe) from any social sphere, knowing the community (hyper professionalism is not helpful in restorative justice e.g. some want to speak in Sicilian). -> knowing how to be in the middle of the difficult encounter, without protections (handcuffs etc...) through the creation of a safe environment. How does the process begin? Through a referral of the case (staff, social services, judge, lawyer... best if the parties request it. This obviously requires that there is enough information about it); preliminary individual interviews with the mediators (they are preceded by a written communication with outline information. They are sometimes conducted by two 8 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) mediators: a man and a woman, one of whom is silent, who will participate in the restorative justice meeting, and the other as a guide. They serve to inform, what is proposed, the modalities, the rules, what repercussions it may have in criminal proceedings); restorative justice programme (circle, conferences, mediations); future confirmatory and restorative activities (activities where people "follow the rules" established together, making common commitments for the future. You try to 'repair' what has been destroyed e.g. go to the victim etc.); monitoring and outcome. What takes place in the process? It starts by recounting what happened to those people (very free personal narration), and then moves on to the narration of what there was before the offence (experiences of betrayal, request for justice, etc.). The narration of the experience is very important because it opens up the third step, that of values (one reflects on the offence, on the importance of respecting the precept and recognising the offence. We discuss the meaning of values, which are different for each party: e.g. what is respect for me? What makes me suffer?). The meeting ends with a shared commitment (reparation and future behavioural commitments). In which cases is restorative justice best used and prioritised? We can divide them as follows: 1. Relationship between the parties (or group): offences in the family, between acquaintances, at school, at work... there is an interaction that precedes the offence. In this case, restorative justice works because it does not separate relationships, but succeeds in determining their future. 2. Offended legal goods (and offences with an impact on the whole community): serious, very serious offences where the offended legal goods are primary (life, physical integrity...). Crimes with a strong symbolic and value implication (e.g. ethnicity, race..) and "subjectively serious" offences with an impact motive on the victim (or the offender: e.g. guilt regarding a public disaster that was not wanted -> Mottarone cable car). They often indirectly involve society, which feels dismay and indignation (e.g. death of the child Samuel). Restorative justice is a method that can be applied in all human areas: not only the criminal sphere, but also school (e.g. disciplinary sanctions are replaced by actions aimed at the educating community), social (e.g. neighbourhood conflicts), health (e.g. in cases of aggression towards health personnel), family mediation. The important thing is to respect restorative principles: the voluntariness of the encounter, con sensuality, voluntariness, etc.. International principles of restorative justice (according to international sources) The Italian Law 134 of 2021 (Art. 1 paragraph 18 letter A), states that the organic discipline contained in the decree (on restorative justice) will have to comply with the victim's directive and the internationally established principles. What are these fundamental principles? - UN Basic Principles and Rec. 2018 Council of Europe: speaks of restorative justice as voluntary, free (right to be informed), according to the principles of accessibility of programmes (in every state and at every level of trial. It must be accessible in every matter and at every stage of the criminal proceedings), confidentiality (confidentiality. No one must talk about the meeting, even the parties may not use what came out in the criminal proceedings. However, the parties can make a public apology if they both agree), gratuitousness (for the beneficiaries, but not for the mediators who often have to attend courses at high cost), flexibility, informality (ease of access, where the parties are the protagonists, not the experts), independence and 9 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) impartiality of the mediators (towards any offender), reasonableness and proportion of the restorative commitments (voluntary commitment must be possible and achievable), acknowledgement of the facts (it is preferable that one knows and is aware of what one has done, in order to avoid creating the conditions of the meeting the parties see themselves as strangers) restorative outcomes must have a favourable influence on the accused/convicted person in any proceedings before the court (acts as a mitigating factor in the case of success, while having no negative effects in the case of failure), safeguarding due process and the principle of innocence (e.g. right of defence, interpretation and translation). Respect and fairness towards the victim and the offender (guaranteed both by mediators and between the parties), fundamental importance of the judge in the final decision (guarantor judge not executioner). NB. It can also be used pre-crime (e.g. before a lawsuit). When the proposing authority is a judicial authority, that authority may propose and activate the route only if it does not consider that it excludes the responsibility of the person of the proceedings (Art. 129 of the criminal code). The united nations say that the parties victim and offender should normally agree (acknowledge) the facts of the case, as a basis for participation in restorative justice (Reg. 30 para. 2 Council o f europe -> participation is not omission of guilt). - EU Victims Directive 2012/29 (Art. 12): does not impose justice restorative (left to the discretion of each state and encouraged -> they are not obliged, but it would be good if they did), but requires that there be services to assist victims of crime and their protected participation in criminal proceedings. It requires competence in doing restorative justice, and it also requires a certain confidence in doing it. It has some (sometimes problematic) conditions: The victims The figure of the victim is a controversial one because major questions coalesce around it: is she a forgotten or the hero/protagonist of our time? Are victims dangers or resources in justice systems? At the post-Lisbon Treaty European level, the victim has been a factor of competence (Art. 82) -> in 2012, the EU adopted a Directive on the legislation on assistance, rights, protection of victims of crime and their participation in criminal proceedings (replaces the 2011 Framework on the standing of victims in criminal proceedings only). It is a horizontal directive because it covers all victims of any crime. Other sources and instruments protect only some victims: 10 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) These sources are causing in institutions, penal policies, the social policies, in the common sensibility...-> positive sides such as more attention to people (social solidarity), openness to restorative justice (the directive deals w i t h restorative justice); but also dark sides: e.g. conditions for practising restorative justice (it is often too victim-centred), development of new security policies (law and order, zero tolerance) and criminal procedure. These sources put us in front of the promise of being treated with care, dignity, sensitivity, in a non- discriminatory, personal and professional manner (are we willing t o put up with this? Are we really able to behave like this?). The Directive protects in this sense: - Repeated victimisation (being victimised again by the same person or by others, for the same or a different crime) - From intimidation/retaliation - Secondary victimisation (negative consequences the victim suffers as a result of unintended effects of justice and protection systems e.g. medical management after sexual violence, lawyers, social workers). NB. It is a state duty and a task of the penal system. Protects victims, but may cause the expansion of coercive preventive measures (e.g. use of electronic bracelets to protect potential victims; e.g. compulsory family removal). -> force is used to avoid future repercussions. Hero victim or vulnerable person? In the books 'Criticism of the Victim' and 'Time of the Victims', victims become subjects of newspapers, parliamentarians and people with power. There are victims who do not want to be associated with vulnerability (they prefer to be called survivors, heroes, people... Sometimes it happens that victims become culprits -> e.g. "you brought it on yourself", or referred to as mere numbers -> e.g. in collective violence, massacres...). The 'movement' of victims is divided into three areas: - Punitive claim area: victims demanding more punishment w i t h a view to zero tolerance (especially in the area of violence against women and road murders) - Proactive: they demand free medical/psychological care services. They are not interested in criminal justice, but they ask for a parallel system which has nothing to do with punishment and repression... but with welfare (e.g. orphan of family murder asking for a subsidy, e.g. compensation for damages in wataclan cases). This area also uses the 'memory of the victims', i.e. the use of culture for the memory of the victims (sometimes generating conflict e.g. why is the holocaust remembered and the foibe less so)? - Reparative: promotion of and participation in justice processes through symbolic reparation (e.g. apartheid). Seeking to mitigate the punitive system (e.g. USA, association calling for the rejection of the death penalty by victims of violent crimes) Nils Christie, in his article 'The ideal victim', talks about the victim in the collective imagination: he often corresponds to an ideal canon, which denies the biographical, real situation of the victim and turns him into a hero/traitor. The ideal victim is represented by the weak, the one who gets crushed (often women -> some feminists refuse to consider themselves as a vulnerable group because they are subjugated), the fragile, the lesser... This representation of the victim spills over into international norms (e.g. mafia victims, they become innocent victims, without blemish). The 11 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) victimisation becomes something to be reflected in, a dark field -> ideal victim/ ideal culprit (even those who are victims, if they are guilty, no longer become victims and vice versa). The dark field of victimisation, excludes those who live in contexts where certain behaviours do not make victims or are not yet illegal behaviours (e.g. in authoritarian regimes, where the term 'abuse of power'/e.g. asbestos victims of the 1980s). The victim is always linked to a political, social and judicial fact and reaction. The EU is devoting a lot of time to the topic of victims: in 2 0 2 0 , the Victim Strategy (2020-2025) was made, reconciling the work on the impact of the Directive on member states with the infringement procedures. With the last discussion (closed with Italy), it is not excluded that the Directive will be amended. The directive is horizontal: it deals with all victims of any crime (unlike other binding and non- binding instruments of the UN, Council of Europe or EU... which only deal with certain victims and certain crimes: children, women, sexual offences, domestic and gender-based violence, victims of trafficking, victims of terrorism, racism/xenophobia, victims of torture -> they move first on repression and countering the practice and then on protection). The directive does not contain penal norms of repression, but of introduction of rights, assistance and protection for victims. It moves from a generalised definition of vulnerability (e.g. all minors, all women, etc., the so-called 'typical vulnerable') to the idea that individualised protection needs must be assessed on a case-by-case basis (individualised assessment of vulnerability and protection needs). NB. What is not clear is who makes this assessment of vulnerable, when, and how. From typical violence (by definitions e.g. stalking) to atypical (to be assessed). This precludes that not everyone is vulnerable by nature, but that there needs to be an assessment, not to enter into the logic o f victimisation. The evaluation serves to put in place protective measures (Art. 18-23) in this regard: - Individual for specific protection needs - Adoption of specific and special measures to protect victims and their families (both external and internal to the proceedings) The Directive defines the definition of a victim in Art. 2: victim is a natural person (not a legal person) who has suffered harm (physical, mental, emotional or economic loss) caused by a crime; victim is the family member of a person whose death was directly caused by a crime and who has suffered harm as a result of that person's death (e.g. wife is raped and dies -> husband becomes victim). The family member is understood to be the spouse or the person living with the victim, on a stable and continuous basis, in a close relationship with the victim, child, brother/sister, etc. NB. The Directive also applies and is enforceable in the EU against non-EU nationals, if the act is a criminal offence. A person should be considered a victim regardless of whether the offender is identified, caught, prosecuted or convicted (recital 19 of the Directive. Sometimes it happens that the offender is not punishable by law e.g. is dead). These interventions are also addressed to victims who are not only dependent on criminal proceedings or their outcome, therefore 12 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) is also addressed to those who are victims of crime due to unknown persons and/or deaths (e.g. kamikaze, hit-and-run driver). The Directive is very important because in the coercive logic, in court one works only for the protection of the offender (not the space to listen to the victim!). The Directive has two objectives: - Ensuring information, assistance and protection regardless o f criminal investigation (compulsory for all countries in the same way both pre- and post-prosecution) - Offer the victim the opportunity to participate in criminal proceedings (for now left to the discretion of states) It establishes a real system for victims, consisting of three interventions: - Information, assistance and support: information is the easiest to implement because it does not impose balancing the rights of others, but it is poorly implemented. Assistance requires us to create services. This service must be guaranteed from the first moment the victim is known and for some time afterwards. It must be guaranteed at all times (I must have an assistance service even if I do not want to report) - Protection: involves limits to the fundamental rights of others (e.g. prohibition to approach the offended person) - Participation in the criminal process: it requires that the victim has no right to punishment, conviction and interlocution on them. He/she has the right to be heard and to contribute to the establishment of the fact, but cannot ask for the offender to be punished (except in the case of the right to sue, where the victim asks for him/her to be prosecuted) Who must know and act in the name of the Directive: - Any competent authority operating in the criminal field (police, court clerks, experts, lawyers, etc.). - Any service that comes into contact with victims (first aid, social health services, trade unions) must be able to inform and direct. This precludes that states should guarantee general and specialised assistance services (either public: set up by the state, agencies... or private, provided they offer a free service e.g. NGOs... with operators, psychologists, doctors-lawyers working on a voluntary or professional basis). What is asked of these operators? To recognise who the victims are (often a victim does not want to, cannot recognise this) and help them to get assistance, to be respectful (attentive, sensitive, not blaming..), to act in a competent, non-discriminatory and personalised manner What is required of support services? To give advice, assistance, protection etc. not only to the victim, but also to their family members (before, during and after criminal proceedings). Victim Strategy (2020-2025) Strengthening the rights of victims of crime is imperative. In particular, that of improving the assistance and protection of the most vulnerable victims (with the addition of victims of environmental crimes, undocumented migrants, victims of crimes committed in prison, etc.). Imposes the right of victims to access decisions regarding compensation for damages, calling for the creation of a national Nation plan, with more resilient social systems (capable of receiving, recognising and supporting victims). It elects a victims' rights coordinator who opened a Victim Portal (in all languages. Italy does not have an ad hoc portal where to get info, puts restorative justice on par with victim assistance see photo) and calls for a strengthening of the international dimensions of rights (states must cooperate). 13 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) Italy has transposed little and badly the Directive and has limited itself to amending a few rules concerning the participation of the victim in criminal proceedings. In particular, in Article 90 it added: - Art. 90a: new information on the offended person. From the first contact with th e authority at the offended person is provided with information about the complaint, complaint, proceedings, filing... t h e r e is a reference to restorative justice, but as 'mediation'. - Art. 90b: notification o f the offender's escape or release from prison - Art. 90quarter: new provisions on the particularly vulnerable offender. Does not specify who is to assess the condition of particular vulnerability and in a way, redefines 'typical vulnerabilities' There is a huge problem of language: the Directive speaks of victims, but the rules focus on the concept of the person offended. The person offended does not coincide with the concept of victim (the person offended can also be a legal entity and indicates only the holder of the offence, not anyone who has suffered the consequences of an offence). The victim in Italian legislation is only included: - In paragraph 18 of the Criminal Justice Reform Act 2021, where the term victim coincides with restorative justice 14 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) - Article 498 (Code of Juvenile Criminal Procedure) and the Domestic Crimes Orphans Act - In some regional laws concerning the elderly (e.g. scams), massacres, asbestos, etc.. There are not only EU sources. Even the Council of Europe has dealt with victims several times (albeit with soft law initially), even t h e United Nations itself inaugurated international victim law: Basic Principles of Justice on Victims of Crime and Abuse of Power, 1985. Here it is defined that the victim is also the legal person and whoever, individually or collectively, has suffered an offence -> even rescuers, who have suffered in helping victims, are also victims e.g. rescuers 9/11. Also the International Criminal Court through, the Rome Statute and Subsequent provisions -> victims was not foreseen at t h e beginning, so much so that at Nuremberg the victims were not involved, heard, but only through some 'videos', filmed. With the Eichman trial in Jerusalem in the 1960s, victims are heard for the first time -> victims begin to be victims. Victims become victims after the Kampala Conference: they have a statute, which regulates the functioning of the Court, concerning victims and witnesses (who are they? How do they protect themselves?). We find the definition of victims in Art.85 as natural persons who have suffered harm as a result of one of the crimes within the jurisdiction of the court (genocide, crimes of war, crimes of aggression). Victims may also be organisations and institutions that have directly suffered an offence to their property intended for religious, social, artistic activities... or to their historical monuments, hospitals etc intended for humanitarian purposes. What can victims do? They have rights such as the right to participate, to intervene (by presenting testimonies, points of view, pleadings...), legal representation (to have legal assistance), support and assistance, the right to seek reparation in case of conviction of the accused (a fund has been set up for this purpose, which serves for material economic reparation in case of conviction, but also support for victims). NB. Restorative justice is a tool that is placed by international standards as a victim-friendly instrument: e.g. in the Council of Europe Declaration (1985) on the position of the victim in the framework of criminal justice, states are recommended to explore the possibilities of using restorative justice. E.g. in the 1985 Declaration, Rule 7 recommends informal systems in dispute resolution (mediation, native practices...) to meet the needs of the victim. O r g a n i s a t i o n a l crime, environmental crime and corporate violence There are issues that were not previously considered to cause casualties (in the context of disasters and victimisation): one example is the environmental issue, such as the case of Bophal (India, 1984). This Union Carbide (British multinational) factory exploded, causing 10000 deaths, millions of people exposed to toxic gases and tons of harmful substances in the environment. The effects are still there today, so many people use contaminated water and some have died from long-term consequences. Even today, some experts, such as Martin Righ, are trying to make 'reparations' (also because nothing has been done in the courts). The same issue arises in Italy for the Morandi Bridge case, the Eternit case in Casale Monferrato (exposure to asbestos: a health and environmental problem), the railway disaster in Viareggio, the steelworks in Turin, defective heart valves, infected blood products (hepatitis C, HIV in blood bags), cases of prostheses with industrial silicone, glyphosate (herbicide used in 15 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) all over Europe, where it is not clear whether it is carcinogenic or not. T h e scientific community does not have an unambiguous thought in this, so for now Europe has still allowed to be used). All these offences were culpable and not wilful: the damaging event is not intended, so it is more complex to prevent it. Above all, it is not easy to establish when it is culpable or intentional, because you need to 'collaborate' to pass sentence -> punitive justice cannot work. What about Covid? Can it be considered an organisational crime? Are there transnational deaths... could they have been preventable or not? Do processes help or is transparency needed? Were there concausal consequences to the deaths? Can restorative justice help? All this tells us that litigious and punitive systems are the enemy of transparency! In these types of crimes the punitive system cannot work, because there is a co-responsibility global, it is therefore necessary to foster systems that favour knowledge, the right to truth and the right to know. A different system helps to help to know the warning signs, to prevent victims or repeat victims (with structural reforms, new protocols and practices). One tool in this regard is Business and Human Rights (UN and OECD): these are resources (guidelines for multinationals) on corporate social responsibility o n the basis of protecting, respecting and remedying (not only today, but in the future) human rights. The EU is also dealing with these issues with the Foundamental Right Agency, focusing on access to remedy (especially on the issue of child labour and migrant workers). Restorative justice in the Italian penal system Italy lacks the discipline for restorative justice. It should arrive with law 134/2021 which delegates the government to adopt legislative decrees on the organisational discipline of restorative justice. Therefore, at the moment there are no programmes for restorative justice, we do not know the effects in the penal system, and we do not have a discipline regulating mediators and designated centres. The previous attempt to regulate it failed (the Orlando proxy on the need for a law in 2017, was not exercised). We therefore have scattered references, but no roots! There is a risk of a flattening of restorative justice to public utility work that is not restorative justice (e.g. municipalities were given funds for prisoner placement programmes. These funds have mostly ended up in works of public utility). We currently have: - Guidelines of the Department of Juvenile and Community Justice (2019, Ministry of Justice): they concern restorative justice and the victim. They are problematic because they make the educators and social workers of the Ministry of Justice (those who write the 16 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected])