Appunti Giustizia Riparativa 25p.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]) - 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])  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])