Appunti Giustizia Riparativa 25p-part-3.pdf

reports to the probation magistrates to grant or not to grant some parole to prisoners) the role of facilitators of justice - Criminal mediation and other restorative justice pathways in juvenile criminal proceedings (2018, Childhood and Adolescence Authority): they give operational guidance....

reports to the probation magistrates to grant or not to grant some parole to prisoners) the role of facilitators of justice - Criminal mediation and other restorative justice pathways in juvenile criminal proceedings (2018, Childhood and Adolescence Authority): they give operational guidance. It was drafted after consultation with judges, PMs, mediators and lawyers. It photographs the use of restorative justice in Italy as of December 2018 and gives some advice: in Italy there are few restorative justice centres, poorly distributed on the territory (therefore not very egalitarian) and born either by the juvenile justice authority, or by the university or the third sector. The centres are of an excellent level, but sometimes t h e y h a v e had stops because they are experimental (funding has run out!). If the Orlando reform of 2017, had given hope for a discipline (albeit linked only in the execution phase of criminal measures). The then minister had established the States General of Criminal Execution, divided into working tables (e.g. foreigners in prison, restorative justice..) that gave thematic reports. At the end of these tables, Parliament enacted Law 103/2017, which contained some operational provisions (e.g. the extinction of the offence as a result of restorative conduct) and other provisions with delegation of the government to reform the security system (delegation not exercised), introduction of a discipline on restorative justice in enforcement (delegation not exercised) and changes in the adult prison system and in the execution of sentences and detention for juveniles. The legislature ends and the next government is politically different (yellow/green), so it decides to partially follow the delegation by introducing: - D. Lgs. 121/2018, Discipline of the execution of prison sentences against convicted persons juveniles: it is not a juvenile prison law, but it somewhat heals the obscenity of Article 79 of the 1975 Prison Law, which stated that 'the rules for adults also apply to juveniles until the legislators do something else'. Hence, it gives provisions dedicated only to juveniles (e.g. alternatives to prison such as home detention, probation, semi-freedom..), but it does not yet speak of restorative justice (it must favour restorative justice paths -> but there is still no discipline!). The rule also appears problematic because it is a rule of principle in the execution of punishment, when all custodial justice moves away from prison sentencing - D. Lgs. 123, Prison Reform (adults): brings into the prison system, the critical reflection on the crime, which includes reflection on the consequences of the crime for the victim and on possible reparation actions. This becomes a part of the work that educators and social workers (and not mediators as it should be) have to do with those who are interned (but not with the victim). It also introduces free activities within public benefit projects 17 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) - Legislative Decree 124, Reform of the Prison Order on Prison Life and Prison Labour (Adults) The Justice Commission, had in fact considered that the Orlando Law, was not very victim-centric, giving a restorative (not reparative) reading, through compensation for public utility work. No benefit to the victim, who should be entitled to more effective forms of reparation of the offence. The view of the victim in the re- educational treatment is explained in these ways: Art. 47 (1975), remained partly dead and is now being dusted off but always in community service. Art. 176 of the penal code on probation and sure repentance: when the victim culture emerges it is evaluated on the attitude towards the victim (it becomes fashionable to meet the victim to get probation - > restorative justice not really voluntary). An example of this is the Vallanzaska case: committed so many crimes, went through a process with a non-specific victim without parole. The Court of Cassation issued a very problematic judgement stating that meeting the victim in mediation is not enough, repentance is needed. Art. 21 on work outside, which responded badly, after the Torregiani case and similar, to the inhuman conditions in prisons to reduce overcrowding -> again it works badly because it makes families assume that prisoners work for free in order to have freedom. Cartabia Reform Law 134/2021 Today we have Law 134/2021 which contains a paragraph in Article 1 that says that the government is delegated to introduce one or more legislative decrees in judicial reform, following these principles: a. Giving a notion of restorative justice within the framework of the regulation of programmes, indicating the criteria for access, the guarantees for participants, the persons entitled to participate and its modalities, in the interest of the victim and the offender b. Calls for defining the victim of the crime for the purposes of the restorative justice programme (problematic because it only adopts the restorative justice system to certain victims) c. It concerns the grafting of restorative justice into criminal justice. As the sources say, it is granted at every stage and level of the proceedings without limits with respect to the seriousness of the offence, at the initiative, however, of the competent judicial authority after an assessment d. Provides guarantees for access to programmes e. Predicting the outcome of restorative justice programmes in criminal proceedings: there must be, but not negative effects f. Explain who the mediators and restorative justice centres are, providing that there should be at least one in each district of the Court of Appeal It has delicate nodes (it is organic, it provides for motions, programmes, outcomes, guarantees, accessibility, etc.) but it does not work in these areas: - Defines the victim - Access Criteria - Legitimised persons (implying that there are non- legitimised persons) - Judicial authority initiative - Experienced mediators (competent or professional?) 18 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) To date, restorative justice could find applications in juvenile justice, the criminal jurisdiction of the justice of the peace and the responsibility of agencies (because open, flexible and constructive systems). Community service, restorative conduct, parole and probation can be spaces for restorative justice, but they are not enough if they are not based on encounter (as are mitigating factors and the commensuration of punishment). In Italy it is activated by the judicial authority, social services or judicial police. It has been used little, but at every stage and degree of the proceedings, leading to the mitigation of the crime. There is a risk of transforming restorative justice to increase the dose or in moralistic terms (show me you are repentant). Restorative Diplomacy and Restorative Peacebuilding We have already seen how restorative methods have the highest levels of collaboration between the parties with creativity in finding solutions and in dealing with complex situations (because they are serious, extensive, with several complex actors), which is why they are also used in post-conflict situations and in peacebuilding. In fact, one can emerge from a conflict situation in different ways, with different degrees and qualities of peace: from a low level, such as ceasefire and armistice, to a higher level, through the building of walls and barriers (sometimes with negative outcomes). Then there are forms of constructive peace (the most lasting) that do not work with coercive restrictions (e.g. prison: it acts in the immediate, but the problems of the conflict remain) -> from negative peace (cessation of hostilities) to positive peace (resolution of the original conflict and justice). Making peace and justice simultaneously is not easy. Links must be rebuilt! - Top-down (or top-down) diplomacy: done by those in positions of authority. Sometimes it does not work (e.g. Afghanistan, the Taliban got a foothold and not the West). It is based on external results after some agreements (e.g. ceasefire) made by experts who do not live the conflict and come from outside. It is necessary to build trust between both sides. - Grassroots (or bottom-up) diplomacy: done by cooperators and mediators. Sometimes it can become negative because while living abroad, one lives separated from the people in conflict (e.g. Cambodia, Ivory Coast). They should try to involve the protagonists and the local population, democratising peace processes (inclusive and participatory) that must also include enemies. They work on a multidisciplinary approach (transitional justice). NB. The Instituting Power of Civil Society by Mauro Magatti (2005): recounts how civil society has been instrumental in creating laws to protect them (e.g. the case of El Salvador, an association to find children illegally given u p for adoption abroad. It then became 19 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected])  an institution). Building Peace: Sustainable Reconciliation in Divided Societies by J. P. Lederach: represents the pyramid of diplomacy, from cooperators to negotiations between heads of state. It is interesting to look at the role of young people and women in both types of diplomacy (they are often overlooked). The UN has a sector entirely dedicated to and animated by women, because it has been shown by empirical analysis that where women are present, more lasting peace is built -> Security Council Resolution 1325/2000: importance of women in negotiation and peace agreements (women are more disinterested in profit, they are the generators of life, they are the most victimised and they are better prepared). When women are at peace tables, peace agreements last longer. E.g. Eddie Schlaffer, Jewish: he founded the 'school of mothers' (now parents) when the Islamic kamikaze violence started. She focused on mothers because she states that the first ones who do not want their children to die are the mothers. He made meetings with mothers to understand when violent Islamism is starting (bottom-up working groups to understand the first signs of political, Islamic violence, etc.). E.g. Hauwa Ibrahim, helped the release of some kidnapped schoolgirls in Nigeria through helping mothers to meet with their detained sons to get information about the kidnapped girls. The EU has an office, Radicalisation Awareness Network, which aims at the prevention of violent extremism of any matrix through a bottom-up logic. It has a number of thematic working groups: communication and storytelling (listening to and propagating stories: how one is completely captured by these extremisms), youth and education, rehabilitation (pathways out of radicalisation. Sometimes they are different for everyone and exhausting because they impose betrayal), prison groups (prison is the place where one is most easily radicalised), police and authority groups, groups of victims of terrorism. The role of young people is established in the Ran Young Platform, an EU platform of young volunteers from civil society. Memory and justice The theme of remembrance is a dilemmatic one, but strongly linked to the theme of justice. Remembering is something that can be done when nothing can be done any more: but how to remember and what to remember is a source of ethical conflicts (e.g. in museums what to show, what to hide, how to represent evil), architectural (how to architecturally represent museums and places of memory, which places to preserve? E.g. Eichman's body disappeared), political (who are the victims and who decides, who are the executioners, can the fallen of two extreme sides be remembered in the same place? Who can remember?). The theme of memory is linked to generations: people who feel victimised or blamed by their ancestors (e.g. blacks in the USA, who feel victimised like their ancestors and accuse the USA of carnage). Is there any justice against gross and systematic violations of human rights and international humanitarian law? Vera Vigevano Jarah, comes from a Jewish Italian family, with her grandfather and some family members killed in Auschwich. She managed to escape from Europe and take refuge in Argentina, where she married and had a daughter: Franca Jarach -> she disappeared because she opposed the dictatorial regime in South America. Vera founds the association 'Madres de Plaza de Mayo' and discovers that Franca ended up at ESMA: a school used to torture and imprison political opponents, and then thrown from a plane in the middle of the Ocean. History tells us of those who were left alive to be tortured by seeing the horror (e.g. Shoah and Rwanda). It is contrasted on the one hand by the need to do justice, but the impossibility of doing so: a response is necessary, but it is provisional, limited and not sufficient. 20 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) After the Shoah, criminal law designated certain crimes with the creation of the International Criminal Court: the terms genocide, crimes against humanity, war crimes and crime of aggression (post Nuremberg Tribunal) were created. The law of war already existed (post Geneva Conventions) because they protected certain actions that could not be done even in war situations. There are crimes that even today can be declared as nameless crimes (e.g. ethnic cleansing), which do not allow one to demand justice and acknowledge the victims (Hannah Arendt 'crimes that can neither be punished nor forgiven'). In the last century, Vladimir Jankèlèvitch, spoke of unforgiveable facts and wrote works on forgiveness ("Forgive?" "Forgiveness"); Jacques Derrida ("Forgive"), spoke of the need to forgive what is unforgivable and imprescriptible. Survivors are often targeted by organisations that should be able to protect them (e.g. police), they bear testimony of surviving death (e.g. during mass graves), which is often a torment (torment of guilt for not having done enough to save others or for having survived). They have the task of testifying, but are sometimes not believed (e.g. Holocaust deniers or direct witnesses) or find it difficult to recount (unspeakable and painful to recount). Survivors experience wanting to know what happened is wanting it to be acknowledged: there is a link between victim and perpetrator (Primo Levi: grey zone). Shoah survivor Simon Wiesenthal has spent his life finding the perpetrators. Interned at the Lviv concentration camp (a former architecture faculty he attended), he is picked up by a nurse and taken to a room where there is a former SS man who has been blindfolded because he is dying and asks for forgiveness from a Jew. Simon takes care of him but does not speak: the next day the boy dies and the nurse gives her his belongings (where his name and address are written) -> at the end of the war he goes to visit his mother in the bombed-out house -> he will be tormented for never having forgiven him. Justice, not revenge (1989), responds to this logic: to respond in the name of justice. What moves him is not revenge, but the call to make the perpetrators who denied their responsibility ('I was following orders') answer. The perpetrators are ordinary people (The banality of evil -> evil is banal. Murderers -> under certain conditions the mechanisms of obedience lead to atrocities), any one of us can become one (regardless of culture, education etc.). What is certain is that mass atrocities require a complex organisation: propaganda of the enemy (satire, information...), dehumanisation of the (non- human) victims and distance ( moral, physical and social) with them. Perpetrators defend themselves on the pulverisation of responsibility and the execution of orders (obedience and call to loyalty to the authority of the superior): when one obeys an authority, one does not feel responsible. Modernity and the Holocaust: e.g. modernly advanced Germany using basic techniques; e.g. Rwanda, neighbours killing each other with knives; e.g. Desaparecidos in Latin America; e.g. ethnic cleansing in Yugoslavia through bloodshed (rapes, forced abortions). In this climate, who are the righteous? Hannah Arendt dealt as much with the motivations that drove normal people to turn into exterminators. However, he also deals with others: he states that the righteous, who resisted when the law dictated that killing was righteous, depend on the faculty of judgement. The rules imposed during the Shoah dictated that all knowledge derived from experience and normative laws fell away. The people who were faced with the choice of what to do in the face of an unprecedented situation moved 21 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) according to their own faculty of reflective judgement (Kant): those who did not do what was required were not people who obeyed, but who reasoned that they 'could not do it' (even if they were sometimes anti-Semitic, they did not accept death). NB. Determinative judgement: judgement arises from applying the rule (which is there before) to the specific case. Aesthetic reflective judgement: judgement arises from an example that brings the specific case closer to internal universality (the case, even if we disagree, moves us something internally). The strength of the example is that it shows the congruence between reality and normativity: it shows us the reconciliation of what is with what should be. The righteous, therefore, are people who were able to see the evil in harmful actions and felt that that inner universal, said you cannot do that. They thought for themselves (several times, reviewing), exercising their own judgement based on their own values. The Righteous Among the Nations saved memory: they saved humanity (e.g. SS, Muslims, peasants who defended and saved Jews -> t h e r e is a garden in Jerusalem an archive on the subject). In Israel, it is national law (1953): the righteous have the right to be helped by recognising the good (not just the bad) and helping the victims. Interesting is how they do not have to be Jews, because they respond to the logic of setting out to help the enemy, risking their own lives (e.g. Gino Bartali, used to carry the names of the people to be saved in the barrels of his bicycle with the excuse of training). There is an ad hoc committee, The Court of Good, which is responsible for deciding to whom to give the honour. NB. The just not always the good (e.g. Scinder). The European Day of Remembrance of the Righteous of Humanity has been recognised since 2012 (also in Italy since 2017). Remembering = doing justice. Remembering by name (e.g. database, e.g. Auschwitz Album, e.g. Holocaust Memorial in Paris, e.g. Stones o f Stumbling, The Wall of Names, Kigali Rwanda -> only Tuzi victims. New York Ground Zero). Places of memory are places of chiaroscuro: the documentary Austerlitz, poses the question of whether it is right to 'make memory a museum'. Everyone appears as a tourist, unable to find the right way and tone to approach it (e.g. getting photographed, walking while eating..). Monuments by default by Adachiara Zevi, inaugurates concepts for the architectural remembrance of memory: there must be no triumphalism, evil must be generated without generating curiosity or fascination. Jenny Holzer used very dramatic installations (e.g. human remains) to recall the memory of the US intervention in Afghanistan (art and memory: remembering and reconstructing the indescribable). Doris Salsedo, counter-monuments (fragmentos): memory of the Colombian civil war, she takes her cue from studies in the philosophy of art to create a lead floor made by melting down weapons handed in by the guerrillas. Also in Milan at Piazza Fontana there is a diatribe in the memory of Giuseppe Pinelli (an anarchist accused of the massacre and who died 'falling' from the interrogation window. Calabresi, accused by the terrorists o f being responsible, was killed): two tombstones w i t h different things written on them (killed innocent/died tragically). 22 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) Memory work must make present what is no longer there (individual and collective memory). But, one never remembers alone... one remembers what has been in view of a future that is not yet there (one speaks of active or passive memory: active binds to the future, passive does not e.g. gravestones, flower wreaths). The more complex the facts are, the more conflicting truths emerge (whose truth? What truth?). Tsvetan Todorov writes 'The Abuses of Memory': he talks about the use of memory that is exemplary, or literal. Literal memory is a storehouse of memories that say nothing, while the use of exemplary memory, uses the past in view of the present to fight the injustices of today (to do justice). Paul Ricoeur writes 'Memory, history and forgetting': the link between exemplarity and justice. Memory must be useful for the future: in the face of the unforgivability of facts, we can try to read the past in search of a new meaning for the future (without justifying, but finding lessons for the future). Transitional justice Concept developed by the UN and different studies. It has the objectives of promoting: truth, justice, reparation, and the guarantee of non-repetition (not present in the field of punishment. How do we face tomorrow after collective atrocities?). The UN defines it as 'a comprehensive approach that incorporates a full range of judicial and non- judicial measures, including prosecution of individuals, restorative action, truth-seeking and institutional and civil servant reform'. History has used for years: - Judge and punish (Nuremberg Tribunal, Ad Hoc Tribunals, Permanent Criminal Court). It responds to the logic of bringing the offender before the judge and convicting him (Fighting Impunity). - General amnesties (Latin America, but also vs. Italy post World War II), accompanied sometimes with truth commissions offering recognition at least on paper of the violence. They have led to adverse reactions from the population who have not had truth and justice -> we erase what has been, but we do not mend the bonds (ni perdon, ni olvido). E.g. El Salvador, applied general amnesty in 1992 post war, now it has been declared illegitimate years ago. What to do? How to deal with those who are still in government today and have committed crimes? - Jurisdictional, not punitive model with an individual amnesty conditional on the emergence of the truth In Africa we have the example of apartheid (now an international crime): killing, torture, slavery committed in the context of an institutionalised regime of domination and opposition of one ethnic racial group over another. South Africa is a country where different ethnic groups coexist (whites, blacks, English, Dutch, tribal groups, Zulus, Afrikaans, Indians e.g. Ghandi...), who have been at war with each other for years. It is a country where there are 11 official languages: one Earth, for several peoples. We find some prominent people: Nelson Mandela, lawyer, outlaw, accused, convicted and then imprisoned (for 27 years) freedom fighter and peace justice builder -> Nobel Peace Prize winner and President of democratic South Africa (establishes interim constitution). Albi Sachs, lawyer-lawyer, convicted and imprisoned as a political prisoner (British citizen and white). He is then exiled to Mozambique where the British SS try to kill him in a car bombing: but Albi does not die, he loses an arm and an eye but remains alive -> he will become a judge of the Constitutional Court of South Africa (creator of the transition negotiations). He does not want revenge, except the establishment of the rule of law in South Africa. The novelty of apartheid is that they could react in the same way as Nuremberg: by imposing the same laws in reverse and condemning. Instead, a different method is used, that of justice uniting after separation -> National Unity and Reconciliation Act, establishing the TRC (Truth and Reconciliation Commission). It originated with the Interim Constitution of '93, where it banned the prohibition of revenge and the constitutional principle of ubuntu (a Zulu term referring to the interdependence of peoples: there is no my humanity without yours). In '95 they constitutionally abolished the death penalty ("only by protecting the worst and most 23 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected]) weak, we can be sure that everyone's rights will be respected' the death penalty is "as simple as it is enormous"). The TRC was set up with three committees: - Human Rights Committee (or victims) - Amnesty Committee: amnesty was only granted between crimes committed between 1 March '60 and 10 May '94, on the basis of certain facts as long as these facts were politically motivated (both on the perpetrators' side and not). Individual and conditional in the full transparency of the relevant facts and not denial of responsibility. They heard about 22,000 victims assisted by support persons (2000 in public hearings), granted 900 amnesties (out of 7000 requests). Worked until 2002 for the great request. - Repair and Rehabilitation Committee 24 Document shared on https://www.docsity.com/it/appunti-di-giustizia-riparativa-4/8208039/ Downloaded by: loda70 ([email protected])