Restorative Justice Notes - Part 2 PDF

Few references to s series of documentaries, real stories of real restorative encounters (see on bb)à watch trailers, this may be our first direct encounter with RJ and its protagonists: Je ne te voyais pas (F.Kholer, 2019), Lugano Film Festival of HRs. It is interesting how the direc...

Few references to s series of documentaries, real stories of real restorative encounters (see on bb)à watch trailers, this may be our first direct encounter with RJ and its protagonists: Je ne te voyais pas (F.Kholer, 2019), Lugano Film Festival of HRs. It is interesting how the director brings us the viewers at the side of victims and offenders, men and women, of different age who are looking for justice from very different perspectives, they encountered with themselves, they are in conflict with themselves by the issues posted by the crime. Circle up is another documentary that tells about the first victim offended dialogue that is recalled through the eyes of a group of mothers of murdered children who are able through RJ as they tell us, to transform their grief and lost into healing for themselves and for other young people affected by trauma. A conversation is a film concerning a real case of rape and murder. A better man (2017, Canada) that presents the real story of Atia Kahn the core editor of the documentary, 20 after the abuses she was subjected to, she meets her abusive ex partners and they both walked along a difficult journey towards understanding, responsibility taking, justice and healing. With this documentary, she contributed to her personal struggle against domestic violence to help other offenders find their ways out. The Meeting is a docufilm based on real facts and real persons, based on a real meeting that took place with a woman and a man who years before abused her leaving her injured. This has been called a very unorthodox cinematic experience. This talks about a progressive form of justice, that is indeed is RJ. She experienced RJ by meeting her direct offender twice, once during the proper restorative justice dialogue they both had and a second time during the screenings. During an interview for Independent “I was there because I believed in RJ…a day I will never forget and the memory of which has replaced bad memories”. She is referring to the day she met the offender and calls it an amazing day, an unforgettable day that has replaced a bad memory. “In that room, you see someone that originally had the feeling of being disempowered, angry, sad, turned into someone who feels empowered and was able to let go hanger”. In this way, you see humanity restored in both sides, before that he was the monster who comes out the darkness and then I got to see the human side of him thus changing the memory card, it enabled me to retain control and had a different reaction to the original memory. “When I went home, I was trying to process it all and I felt this way of sadness coming from me realizing he had damaged his life as well as mine”. We will realize how the people directly touched by aggressive relevant experiences are able to tell everything without explaining actually anything. This is why they often use metaphors to communicate what is essential, when the story might be so hard to tell piece by piece, when the story may be so impossible to comprehend because when there is violence and injustice, nothing is comprehensible. Finally, I will refer to three fictional movies, a very limited selection recommended: Le fils: Belgian movie by two directors The Insult: French-Lebanon movie The Straight story: US movie directed by Linchà The story it narrates is a true story as it is made explicit in the subtitle. It is a story of brothers (remembers our first lecture, how brotherhood may be the expression of both love and hate). The protagonist is a WWII veteran, old, disabled and poor. He happens to know his brother has suffered a stroke and might die. The two haven’t talked to each other for years because they are in conflict. Furthermore, they leave far from each other but when Alvin (the protagonist) received the info about the fact his brother may die, he feels compelled to visit him. We do not the reason why he felt this way, 21 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/  we do not need to know it actually, we do not know anything about the conflict that has separated the two brothers for years and years. Again, we do not need to know these reasons. We do not who is wrong or right about the conflict, who has harmed who. All we come to know along the movie, is that mister Alvin Straight is too poor and impeded to get a vehicle to see his brother or to purchase public transpiration’s tickets. But the need to go to his brother pushes Alvin to use the only mean he has, a tractor used to cut loan, this strange vehicle has a maximum speed of 5 miles per hour and so, Alvin leaves. He moves into his personal exodus and slowly dangerous way drives all the many hundred miles that separate the village in Ohia where he lives to Wisconsin where the brother lives. The journey is the movie and it is a beautiful real true story of what restoration of justice is about. International Legal Sources on RJ Interestingly, the main IOs such as the UN, the Council of Europe and the supranational European Union dedicated legal instruments to RJ in quite recent years. This is an interesting sign demonstrating how RJ is developing relatively quickly over the world. These tools view RJ as an instrument to be used especially in criminal matters. We will study how this is only partially true since RJ can be used in several other fields and the special part of our module will be dedicated to fields which are not necessarily criminal matters. Criminal justice and criminal matters though are like symbols and among the most complex fields of application of RJ, if RJ can be used in criminal matters then even more can be used in school and family matters and so forth. These legal texts mentioned (UN, Basic Principles on the Use of RJ Programmes in Criminal Matters – Council of Europe, Recommendation CM/ Rec concerning RJ in criminal matters – EU, Directive 2012/29/ EU establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision) are more relevant for the purposes of our course, are soft laws non-binding tools that have ap political vocation more than a strictly legal one. The only existing supranational binding legal text that refers expressly to RJ is the EU Victims Directive that we will study in the next lecture. EU member states have an obligations to transpose the directive provisions and this directive concerns victims in the EU and therefore the directive does not regulate RJ per se since RJ is mentioned among the procedural rights of victims of crimes in the EU and the use of RJ is encouraged under certain conditions we will study. The Directive does not provide though for an obligation for MS to introduce or use RJ in criminal justice although the directive encourages MS to promote RJ. Because of its worldwide dimension, you will focus on the UN Handbook aimed at implementing the UN basic principles. Yet, it is of great interest to study the most recent documents issued by the council of Europe, it is the new recommendations on RJ. The text is inspiring, the preamble and the commentary are full of up to date references to the current debate around RJ and the present development of it. The UN are in the process of reviewing the 20002 Basic Principles, a step in this direction would have been the 14th UN Congress on Criminal Justice that should have taken in Tokyo this year but postponed because of the coronavirus (available on bb a document of the UN summarizing the comments received by the commission from scholars and protectioners all over the world about the use and application of the Basic Principles on the use of RJ programmes in Criminal Law). Let us now review the definitions on RJ provided by these legal tools, such as the definition by UN of both restorative process and outcomes. Restorative process means “any process in which the victim and the offender and, where appropriate, any other individuals or community members affected by a crime participate together 22 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ actively in the resolution of matters arising from the crime, generally with the help of a facilitator. RJ may include mediation, conciliation, conferencing and sentencing circles”. (UN Basic Principles on the Use of RJ Programmes in Criminal Matters ECOSOC, resolution 2002/12) Restorative outcome means “an agreement reached as a result of a restorative process. Restorative outcome includes responses and programmes such as reparation, restitution, and community service, aimed at meeting the individual and collective needs and responsibilities of the parties and achieving the reintegration of the victim and the offender”. We already underlined the key concepts and words resulting from these definitions. Interestingly, the same key concepts and key words are found also in the Council of Europe 2018 Recommendation concerning restorative justice in criminal matters. PARA II. 3 Definitions and general principles “Restorative justice” refers to any process which enables those harmed by crime, and those responsible for that harm, if they freely consent, to participate actively in the resolution of matters arising from the offence, through the help of a trained and impartial third party (hereinafter the “facilitator”). Once again, what is stressed in this definition is participation, voluntariness, active engagement, working on the matters arising from the crime, the relevance of the facilitator as an impartial third party who stays in the middle. The new recommendation decides though not to victims and offenders as the UN Basic Principles but to fewer stigmatizing terms such as “those harmed by crime” and “those responsible for that harm”. This recommendation points out how the encounter is a dialogue that may evolve of course with their consent all those affected by the crime such as support people on the side of the victim or of the offender, respective families or members of relevant groups or communities, representatives of public police and even to some extent the same judicial authorities or the police. PARA II.4 Definitions and general principles RJ often takes the form of a dialogue (whether direct or indirect) between the victim and the offender, and can also involve, where appropriate, other persons directly or indirectly affected by a crime. This may include supporters of victims and offenders, relevant professionals and members or representatives of affected communities. In other paragraphs, the recommendation affirms that agreement do not have to include tangible outcomes only such as restitution or financial compensation but may include, no less important than the former, intangible outcomes such as apologies, or meaningful public or private gestures or our non-tangible acts of reparation. We shall see for see for instance how memorial side can be as forms of reparation in cases of massive violence. The parties are even free to agree that the mere dialogue sufficiently satisfied their needs and interest so the COE stresses how it is not the outcome that matters but the process, the encounter, the dialogue. Let us now have a look at the EU 2012 Victims Directive, which is a legal binding source Art. 2(1) “RJ means any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of an impartial third party. 23 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ RJ within the victims Directive is mentioned although it does not put an obligation for MS. Council of Europe Recommendation Rec (2006) 2 on the European Prison Rules Rule 103.7 “Prisoners who consent to do so may be involved in a programme of RJ and in making reparation for their offences”. This mentions but not defines RJ. This rule opens up the possibility for prisoners to be involved in restorative justice programmes and here the prisoners’ consent is stressed. The commentary to the prison rules impact states “this rule acknowledges the increasing recognition that the technics of RJ may be used with sentenced prisoners who wish directly or indirectly to may preparations for their offences. It is important that such participation is voluntary and does not amount to an indirect form of further punishment”. Remember this statement, we will go back to it again. Before the adoption of the 2018 recommendation, the Latin of Latin had adopted in 1999 the very first international soft law instrument on RJ: Recommendation No. (99) 19 concerning mediation in penal matters (1999) PARA I. Definition “These guidelines apply to any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the crime through the help of an impartial third party (mediator)”. Mediation used to be and to some extent it still is the most developed restorative program in continental Latin. As we can see, the key concepts haven’t changed much from this resolution to the 2018’s. Freedom of consent, participation, encounter and so forth. What has really changed is the shift of mediation to restorative justice. We have just seen that the new COE recommendation of 2018 concerns RJ and not only mediation. Mediation as in face to face meeting between the victim and offender only, to this broader idea of RJ attracting other subjects and being able to embrace even entire communities. Some think that this shift is to be debated, some think mediation is still a core concept. The etymology is indeed very meaningful: mediation comes from Latin where mediare means to be in the middle, medius= middle. Others think RJ is better because includes the word justice and refers to restoration meaning that RJ is a justice that restores, the justice that heals and takes into account the future of those involved. Also, the terms used to refer to the third party are contested. Some prefer to call them ‘mediators’ even when they do not intervene in programs that are strictly called mediations. Others prefer the term ‘facilitator’ which is often times mentioned in the legal texts we are discussing. The reason why some prefer mediators is the same reason for which the etymology of the word mediation is important: mediators are those who stay in the middle. Why are we talking about terminology? The origin of the term RJ is unclear and is not easy to say who has been the first to use it or invent it. Also, there are problems with the precise boundaries of the term, restore or repair and therefor RJ or reparative justice? There are very interesting problems with translations of the concept RJ in other languages. In French for instance the legal references to both justice restorative and justice réparatrice and in Spanish the same, justicia reparativa or reparadora. No exact term has been drafted for German with legal texts either Tater-Opfer-Ausgleich or Widergutmachung, going back to do good again. Wiedergutmachung is for instance the term used in the official German translation of the 24 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ victims’ directive. In the documentary Je ne te voyais paswhich is the Belgian-Swiss documentary, the victims and offender often refer to restaurative justiz. Language issues are never just terminology issues. Words convey concepts, words can make things happen as in the influential work by Dan Austin “How to do things with words”. Words entail political and cultural implications. At this stage of the development of RJ worldwide, we are in a sort of lent in the middle between a surprising and promising development of RJ and on the other hand the coming back of punitive justice, penal populism and enemy criminal law. RJ is cool nowadays, the risk and actually sometimes not just a risk but a reality is to call restorative interventions measures and programmes that are not restorative at all. There is a risk that RJ as in the Prison rules amounts to an indirect form of further punishment. The way to do so, is through the idea of reparation. Reparation per se could be a negative sanction such in reparation judicial orders, no voluntariness, no dialogue and no encounter. Furthermore, reparation may be a payback sanction that is a retributive punishment. So, be aware of the shift. In previous lectures, we discussed from punitive justice towards RJ but if we are unclear about what RJ is and what is restorative, we may find ourselves into punitive justice without being aware of it. Always be aware when seeing the term restorative justice, it would be really RJ when these conditions are met: Voluntary encounter (direct or indirect) Voluntary dialogue among stakeholders, those involved Voluntary participation and direct involvement of those concerned in conflict, crime or injustice Agreements are reached voluntarily through encounter, dialogue, participation Reparation, restitution and community service are not per se RJ, they can be restorative outcomes if but only if a restorative process has taken place as defined by the definition we read together. Restorative Programmes and fields of application The way programmes are called according to each national legal system, each local experience or tradition, we can point out 3 basic prototypes: Mediations: face to face meetings involving victims and offenders, Restorative group Conferencing: programs with a broader attendance at the family or community level. Circles: these are like concentric circles progressively widening the scope, involving more people as in all concentric circles, one can be inside of another and they may be the same center, in our case such center is encounter and dialogue. Therefore, facilitators can perceive that peoples’ real needs require face to face meetings like in the movie The Meeting. On the contrary, facilitators may perceive that people require to circle up like in the Victim Offender Massachusetts Program, Mothers and murdered children. Facilitators then can move from one program to the other according to peoples’ needs, interests and expectations. A program can start as a victim-offender mediation and become a community circle in the end or vice versa. Victim and offenders once they have met, they may want to include family members and so we might have a family group conference and if the case has affected the entire community or had a public impact because of media coverage for instance, the parties can resort to go public in a community meeting I which community members are involved and discuss what has happened to them. What is important is that RJ always involve relationships and wants to create them. 25 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ In order to carry out restorative programs, facilitators should be able to create the condition for different worlds to come and meet each other: the victim and his or her lifeworld, the offender and his or her lifeworld, judicial and other control agencies such as social services, the wider community or the police. As said in previous lectures, RJ is not a private meeting otherwise it would be pointless to use it in criminal matters, in transitional contexts after dictatorships or mass atrocities. RJ takes place in a public sphere, inside a public ethics at the very core of democracy. Along and around the three prototypes and crossings, the space for restorative creativity and imagination for restorative flexibility and responsiveness open up. This slide (restorative Justice Practices at a glance) shows the lot that RJ can do, people or outcome wise. You can look who is the green little person, facilitator while the blue is the victim and so on. Look how many programs and things one can do with RJ. The same creativity is expressed by the wide range and variety of programs described in the UN Handbook; whose extract is showed in the slide. As we can see, many different actors, many shapes of the meetings and forms of interactions. Fields of Application We have so far referred to RJ in criminal matters because this is the field that the legal tools we are working on address but RJ can be used in other fields. Criminal matters Transitional justice Inter-personal conflicts – Neighborhood conflicts Conflicts in schools to face bullying or juvenile delinquency or simply peer-to-peer conflicts Health care conflicts and claims; conflicts arising from medical malpractice Family conflicts (partner-partner, parent(s)-children; family mediation in case of divorce) Public disputes like disputes on how to use the land or natural resources or where to build nuclear plant and so on. So, many different fields for the same process. PRINCIPLES – General Principles Following our International legal sources and standards, we will now have a look into the basic principles of RJ. By now we know some of these principles, the general ones already quire known since we have been talking about the many times during lectures. Freedom of participation Voluntary participation, voluntariness Informed consent; withdrawal of consent at any time Active participation Direct engagement Voluntary agreements Voluntary engagements Accessibility, availability Confidentiality Comfortableness and safety of the RJ environment 26 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ Principle of Confidentiality As stated in rule no.14 of the UN Basic Principles and further details in rule No.174953 of the Council of Europe 2018 recommendation, RJ should be performed in a confidential manner so discussions in RJ should remain confidential and may not be used subsequently except with the agreement of all those concerned. If RJ really has an impact on judicial decisions, this is again the recommendation “The facilitator should report the relevant judicial authorities or criminal justice agencies on the steps taken and, on the outcome, or outcomes tangible or intangible of RJ processes. Reports should not reveal the contents of discussions between the parties nor express any judgment on the parties’ behavior during restorative justice”. This is extremely important! The facilitator should convey only information about imminent or serious crimes which may come to light in the course of RJ to the competent authorities but besides this, there is the principle of Confidentiality. The principle of Confidentiality ensures the freedom of participation for all those involved. Furthermore, this principle avoids the self-defensive mechanisms engendered by accusations, judgment and adversarial conflict resolution models. We know already how defensiveness is not an ally of truth telling and responsibility taking whereas voluntariness and confidentiality are. We will address issues of truth telling and responsibility taking again in the future, especially when dealing with truth commissions in transitional context and particularly the most relevant case on the use of RJ in the world applied to HRs violation, the most relevant case is represented by the South African truth and reconciliation Commission. Comfortableness and safety of the RJ environment Often, during classes we have repeated how encounters and dialogues between those who have been harmed and those responsible for the harm are not at all easy. The carry the chance of people being freed from the past, being liberated of monsters and ghosts but this happens at a very high price, of the difficulties and risks of meeting The Other, the suffering of doing a journey into the unknown, no one ever knows what will happen during the encounter. This is just like Alvin Straight in The Straight story movie by David Linch: Alvin and his odd and slow vehicle taking him across US towards his enemy brother. International standards require facilitators to ensure the safety and security of all those involved and furthermore they require them to be responsible for providing a safe and comfortable environment for the restorative process. Facilitators should take sufficient time for preparing the parties for the participation: this is stated in the Basic Principles. Facilitators should be sensitive to any of the parties’ vulnerabilities and if necessary, to ensure the safety of one or more parties, they should discontinue the restorative process. Facilitators should act in such a way as to comfort the parties acknowledging their needs here and now. They are trained to feel athese* in all situations and conditions in order to help parties feel the least uncomfortable. People in a restorative process may cry, unable to speak, may remain silence for a long time, may feel thirsty or even seek during the encounter. Providing a safe and comfortable environment, means that facilitators and mediators are able to address even these basic needs (already mentioned how RJ deals with reality). Basic needs such as having a cup of teas, or a window open to breath. Facilitators are able to address other needs too that range from the need to stop the encounter, the need to leave but then come back, the need for a solitary walk before getting back into the meeting. Another set of principles relates to the operation of formal criminal justice in relation to RJ, that is the risky interactions and intersections between adversarial punitive justice and RJ. Principles here aim at ensuring that also restorative processes comply with fundamental procedural safeguards such as fair trial, right to legal counsel, due process of legal and so on. Second that RJ remains genuine, that is voluntary, participatory, responsive, flexible, inclusive. In other words, democratic. These principles ensure that RJ is not affected by punitive justice. Third, these ensure that RJ has an impact 27 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ on criminal justice system, and it is not something added on the punitive criminal justice system. RJ endorses a mitigation of it by impacting on the criminal proceedings and by influencing judicial decisions in the particular case, in the direction of milder, softer punishments and out of prison measures. But in order to ensure also freedom of participation of the accused or suspect, the impact of RJ on criminal trials or judicial proceedings should be twofold: positive outcomes such as compliant future behavior or reparation acts or even intangible forms of reparation like apologies shall have an impact relevant in the criminal proceedings thus softening or mitigating the judgment whereas if no outcome results from the process or no agreement is reached or even if the encounter does not take place at all or is interrupted, no impact is produced or caused in the criminal proceedings. Furthermore, as clearly stated by both UN and Council of Europe, participation in RJ should never be used as evidence of admission of guilt in subsequent legal proceedings. Fair trials safeguards and fundamental procedural guarantees Right to legal counsel Participation of offender not be used as admission of guilt Judicial supervision of agreements Relevance of positive outcomes in court proceedings; incorporation into judicial decisions or judgments – Mitigating effect of RJ Irrelevance of negative outcome in court proceedings There is another set of principles addressing the operational RJ, these are inner to RJ. These principles pertain to the safeguards and standards of restorative processes. They also correspond to respective parallel tasks of mediators and facilitators. We also have mentioned in previous lectures (4) how mediators and facilitators should be impartial but not neutral, how should provide an equal proximity to all parties and should stay in the middle getting involved and not remaining distant and indifferent while never judging. We mentioned before the need for safe and comfortable environment and we find here other aspects of this principle in the hands of facilitators. They should provide a sensitive unbiased recognition of all the persons involved. They should be able to pay attention to every need the parties explicitly or implicitly express. This means being able of reading across the lines of what the parties are saying. It also means that they shall attention to the untold, that is what persons are trying to say but are not managing to say or are ashamed to say or what is too hard, complex or painful to say. Facilitators shall ensure consideration for the vulnerability of the participants and should embrace this vulnerability providing the same comfortableness and safety that will allow the vulnerable ones to feel secure to open up, to speak up. International standards stress some profiles of vulnerability in particular such as disparities leading to power imbalances but also cultural differences leading to imbalances of weakness of one or more participants. Consideration for safety and security Consideration for vulnerable subjects Consideration for disparities among parties leading to power imbalances Consideration for cultural differences; consideration for disparities leading to cultural differences Normally, agreements on the basic facts of the case as a basis for participation Reasonable and proportionate obligations stemming from agreements Confidentiality The last set of international principles and standards refers to Facilitators and Mediators. We have talked about their skills and about their obligations to be independent, impartial but not neutral, keep 28 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ confidentiality, to be able to ensure the reasonableness of agreements resulting from restorative processes. But who are mediators and mediators? Remember how RJ advocates conflicts to remain in the hands of those involved, who are the owners of the problems and at the same time, the best finders of the solution to such problems. RJ advocates a less formal more accessible justice close to the community. This is why the UN Council of Europe recommend that facilitators should be recruited from all sections of society and should possess good understanding of local cultures and communities. Therefore, they should belong to the community and be recognized as members of it not as distant professionals. Standards by the UN and the Council of Europe: “Facilitators should possess the sensitivities and capacities which enable them to utilize RJ in intercultural settings. Facilitators should be able to demonstrate some judgment and possess interpersonal skills necessary to deliver RJ effectively”. Anyone can be become a mediator or facilitator. Anyone can practice this art: this could be a professional or a volunteer. In both cases, they must receive a proper training, an initial and a life plant training as stated in the COE recommendation, “their training should provide facilitators with high level of competence taking into account conflict resolutions skills, the specific requirements working with victims, offenders and vulnerable persons and basic knowledge of criminal justice system. To become a good mediator, or a good facilitator, one does not need to have a master’s degree or to be an intellectual or a scholar, nor it is needed to be a lawyer or social worker, therapist, one needs to have the most fascinating skill humans can have and this is humanity. Some victims and offenders, almost illiterate, have become extraordinary mediators for the sake of others. They are like the wounded healers, their wounds, their long stories full of experiences and even of extreme ones make them much more trained. Training is not a matter of reading books because as we have said, RJ is not only a theory, but a practice and much more it is an experience dealing with real people, stories and needs. Non-professionalization Qualification and training Impartiality (but not neutrality) Independence Respect towards all parties Good understanding of local cultures and communities Speaking of the facilitators belonging to the community and cultural issues allows me to briefly mention how in certain context, RJ utilizes customary and indigenous practices or is inspired by them. There is a paragraph about this relevant topic in the UNODC Handbook and there are many references to native or indigenous practices in John Bright’s Restorative Justice and Responsive Regulation. Just to mention few examples, this is the case of assassinations restorative practices in Canada or Aborigines practices in Australia or forms of non-state justice inspired by the Maya-Cosmo vision in Central America such as Honduras or Tribunals in Rwanda. Everywhere in the world now, facilitators tend to use about a talking piece in circles and conferences and they do that to avoid people interrupting each other and not listening to each other. Talking piece spring from native cultures especially first nation and American Indian cultures. Talking pieces is a small object that is passed around and that is held by those who want to speak until they are speaking, once finished they pass such object to the other person that must speak next. Cultural diversity is hosted in RJ and of course an essential part one person’s identity, cultural identity/ diversity is acknowledged and can find full expression during restorative programs. Of course, indigenous traditional native practices are not always good and not only good or good per se. The worries that John Bright addresses in his book are bout a simplistic use of such practices. RJ has to find ways to integrate those ancient practices with contemporary HRs and legal safe guides without letting the Western world perspective over ancient native practices that have been addressing the 29 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ same values of modern RJ. But these same values have been addressed for centuries, such as restoring communities’ bonds and find forward looking non-legalistic solutions to conflicts. RJ PROCESS Our last topic of today is that the UN Basic Principles defines as RJ process. How are the programs designed and implemented? How are they carried out in relation to the criminal justice system? We will try to answer such questions by describing what happens during a restorative process. We will first isolate the program itself and loot at its main phases. It is initiated by a referral, cases can be referring to RJ centers by parties themselves, the judiciary, police, social services or other public agencies. In some places, RJ centers are open to the public and referred by simply walking in. After referral, the actual program starts so parties may receive a letter or phone calls to participate to preliminary individual meetings. The aim of such meetings is threefold: first, to listen to one sided story, each person wants to tell; second, to provide all necessary info in order for each person to exercise their freedom of participation and voluntariness; third, to collect the persons consent or denial to the process. If one consents, the consent can be withdrawn at any moment, even during the actual restorative encounter. There will be a number of preliminary meetings as is the number of those involved or those who want to participate. If all people involved or some of them participate accept to participate, mediators or facilitators will understand with the parties which type of program best suits their interest needs and expectations: a mediation, family group conference or a community circle. The mediators or facilitators then set up the meeting, the actual encounter that can last for one or more sessions, for few minutes to many hours depending on the needs of those involved. The restorative programis concluded when participants have nothing more to share or say, they may have been able to reach forward looking decisions about their conflict, they may have exchanged apologies or tangible/ intangible forms of reparation, they may have agreed how to behave in the future or take engagement in complying with the law in the future. Solutions, agreements and engagements are monitored and followed up by mediators for some time and this depends on the severity of the same, the risk the case proposes and on the needs of the parties. Inside the encounter/ dialogue For confidentiality reasons, it is not possible to refer to particular cases and therefore this will be a general broad description of what actually happens during the encounters. At the beginning of the encounter, participants are invited by mediators to tell them their own story. This is normally a very one-sided biased story, the enemy is the monster and not human, it is the origin of evil of things going bad. Facts and narratives open the floor to feeling and emotions. Indeed, by recalling to what has happened to them, to their personal stories, each person expresses feelings: these might be a sense of fear, hatred, hanger but also sometimes may be feeling of nostalgy, surprise because a crime has been committed and they have been victimized, feelings of deception, of betrayal and so forth. Mediators and facilitators acknowledge these feelings and emotions because they are like boxes in which the matters arising from injustice are hidden. Matters arising from the crime is the definition in the legal text we are examining are referred to as the content of the encounter. So, feelings and emotions springing from what has happened are boxes hiding what matters to the people involved. These are nothing but things, rights, principles, people’s values: they may be fundamental rights or material goods. For instance, and oversimplifying very complex exchanges/ dialogues, what really matters in the murder case is life, what really matters in an assault case is physical integrity, personal safety. What matters in a theft in one apartment is the effective and not only financial value of what has been stolen and the bridge of the home. What really matters in environmental crimes may be future generations or public and individual health or the protection of wildlife. This is of course oversimplified list. What matters are the same goods, rights and values that rules aim at protecting and that round the reasons why the rules should be followed and complied with (remember lecture on responsive 30 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ regulation and compliance). So, the basis to draft future engagements which in turn are grounded on future compliant behaviors and of acts of intangible reparations aimed at restoring trust or on acts of tangible reparations aimed at practically when is possible restoring those goods, rights and values that have been harmed. The real and counter point for the parties and conflict, for the victim and the offender can’t be facts or judgments that divide (decide means to separate), the only possible common ground is HRs and human values. The more these are precious and therefore fundamental and universal, the more these values and rights are capable for triggering engagements and change for the future. This is why RJ particularly is effective in cases of severe crimes or even human rights violations. The international legal tools we are studying concern RJ in criminal matters and this is why the UNOC Handbook goes in depth describing when, at which stage of the criminal procedure, restorative processes can intercept or cross criminal justice. One of the basic principles stated by both UN and the COF is that RJ is made available and used at every stage of the criminal justice process. As explained in the UN Handbook (Slide), restorative processes can be successfully initiated at a police level, pre-charge level , prosecution level post-charge but before the trial, at the court level, at the pre-sentencing stages or even in corrections as an alternative to incarceration as a part of or in addition to non-costandard* sentences or even during incarcerations, or upon release from prison. In some countries, restorative interventions are even possible in parallel to prosecutions. Though RJ cannot amount to an indirect form of further punishment, it can only have a mitigating effect on judicial decisions and on measures the judge will adopt and participation to restorative programs cannot count as an admission of guilt. We can now conclude with a recap RJ is not an ally and does not support: retributive justice punitive justice (that is incapacitation and deterrence) penal populism, enemy criminal law over-criminalization (this is explicitly stated in the Council of Europe 2018 Recommendation) the overuse of punitive criminal sanctions (this is also stated in the 2018 recommendation by the COE). RJ promotes on the contrary: Responsive regulation and responsive models of justice A stronger democratic sensitivity in criminal justice Procedural fairness and respect towards all those involved Participatory, voluntary, collaborative, inclusive responses to wrongdoing Constructive, forward-looking responses to wrongdoing Compliance (comprehension of and consent to rules of conduct, behaving accordingly) Responsibility-taking Offender desistance Victim recover and redress Citizens’ and stakeholders’ participation and empowerment, community well-being RJ advocates: 31 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/  Criminal justice reform (underpinning of broader reforms to criminal justice: EC Rec (2018)8: para. 14) Respect of the dignity and equality of each person (no matter how guilty, guilty of what) A greater sense of respect and reciprocal obligations between citizens Victims’ and offenders’ reintegration Community involvement, citizens’ and stakeholders’ participation Building of understanding, and promotion of social harmony through the healing of victims, offenders and communities (as stated in the UN Basic Principles Recommendation) Restoring safety and security though bringing people together to undo injustices and repair harms through dialogue and agreement As said, RJ has several fields of application ranging from criminal justice to public disputes, but the philosophy and method is the same and is based on: Voluntariness Voluntary participation Freedom of consent Active engagement Encounter and dialogue with the enemies Forward-looking outcomes Availability and access to an informal justice Lecture interlude – two documents online Today is the 4th April 2020, the anniversary of a very special exemplary person whose story is very restorative. We will shape two interesting real restorative stories. Today is the anniversary of Martin Luther King Jr. occurred in Memphis this very day 51 years ago. He was one of the leaders of the civil rights movement, one of the most effective leaders actually who professed non-violence. Marti Luther King was killed and therefore he has become a victim. But, as with many victims, it is important to remember them not only for the reasons they were killed and for the horrible fact that they have been killed, you should remember them for their life and the reasons, ideals that moved their lives. There are some notes available on bb from the reading A Gift of Love from Martin Luther King, there are several editions, but he knew that his sermon would be published. It is full of teachings interesting in RJ. In this particular sermon Martin Luther addresses the issue of the love for enemies and his own words “love even for enemies is the key to the solution of the problems of our world. Forgiveness means reconciliation, a coming together again. We must recognize that the evil did of the enemy enable the thing that hurt never quite expresses of that he is, an element of goodness maybe found in our worst enemy”. This simply means that there is some good in the worst of us and some evil in the good of us. “We must not seek to defeat or humiliate the enemy but to win his friendship and understanding at times we are able to humiliate our worst enemy. Every word and did must contribute to an understanding with the enemy and release those vast reservoirs of good will which have been blocked impenetrable world *”. “Let us move now from the practical how to the theoretical why. Why should we love our enemies?” The first reason is quite obvious: returning hate for hate multiplies hate adding deeper darkness to a night already devoid of stars, darkness cannot drive out darkness, only light can do that, hate cannot drive out hate only love cane do that, hate multiplies hate, violence multiplies violence and toughness multiplies toughness in a descending spiral of destruction. “The chain reaction of evil hate begetting 32 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ hate, worst producing even more worst must be broken or we shall be plunged into the dark abyss of annihilation. Another reason why we should love our enemies is that love is the only force capable of transforming an enemy into a friend. We never get rid of an enemy by meeting hate with hate, we get rid of an enemy by getting rid of *. By its very nature, hate destroys and tears down by its very nature love creates and builds up, it transforms. The relevance of what I have said to the crisis in race relations should be readily apparent, there will be no permanent solution to the race problem until the oppressed men develop the capacity to love their enemies. The darkness or racial injustice will be dispelled only by the light of forgiving love. For more than three centuries, American negros have been battled by the iron road of oppression, frustrated by day and by wilder by night by unbearable injustice and burdened with the ugly weight of discrimination, forced to live with these shameful conditions we attempted to become bitter and to retaliate with a corresponding hate but if this happens, the new order we seek will be more than duplicate the old order. We must in strength and humility meet hate with love. Of course, this is not easy. Time is cluttered with the record of communities which surrender to hate and violence. For the salvation of our nation and mankind, we must follow another way. This does not mean that we abandon our efforts: with all our energy we must continue to rid this nation of the incubus of segregation, but we shall not in the process relinquish our privilege and obligation to love. While abolishing segregation, we shall love segregationists. This is the only way to create the beloved community. To our most bitter opponents we say “we shall match your capacity to inflict suffering by our capacity to endure suffering, we shall meet your physical force with soul force, do to us what you will and we shall continue to love you, we cannot in no good conscience obey to your unjust laws because non-cooperation with evil is as much a moral obligation as is cooperation with good. Throw us in jail and we shall still love you, send your perpetrators of violence in our community at the midnight hour and beat us and leave us there half dead and we shall still love you. But we assure you that we will wear you down by our capacity to suffer, one day we shall win freedom and not only for ourselves, we shall so appeal to your heart and conscience that we shall win you in the process and our victory will be a double victory. Love is the most durable power in the world”. These words are like policy intervention and we will see in our future analysis how not returning hate with hate violence with violence can reach immense huge results in practice. How important to is not to humiliate the enemy, the opponent and we will find in our path into RJ another incredible and extraordinary man who set almost the same thing in another continent, in another time, how it is important to free the oppressors and not to hate them. When Martin Luther King was killed, there have been riots all over the US, very violent ones, with people being injured and even killed. The only place where this did not happen was in Minneapolis and the reason why is our second real restorative story that shows you how powerful the gift of love can be, how powerful wounded healers can be. In Indianapolis, they were preparing for riots. Robert Kennedy was there on that day and he decided against all the advices not to do so because it was very dangerous. He decided to go ad meet the crowd, a crowd of black, wounded and angry men and women. By sitting on a top of a track with no prepared speech, he gave an incredible statement (uploaded the full text on bb). “In this difficult day, time for the US it is perhaps worth to ask what kind of a nation we are and what direction we want to move in. For those of view that are lack considering we are white people who were responsible, you can be filled with hatred and desire for revenge. We can move in that direction as a country in great polarization, black people among black people, white people among white people, filled with hatred towards one another or we can make an effort as Martin Luther King did to understand and comprehend and to replace that violence that has spread across our land with an effort to understand with compassion and love. For those of you who are black and attempted to be filled with hatred and distrust at the injustice of such an act against all black people, I can only say that I feel my own heart the same kind of feeling I had when the member 33 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ of my family killed (JFK) but he was killed by a white man but we have to make an effort to understand and go beyond these difficult times. What we need is not violence nor hatred, but love and wisdom and compassion towards one another and a feeling of justice towards those who are still suffering within our country whether they are white or black”. Kenney can pronounce this statement because he is a victim too because his brother has been killed and when we will discover the official definition of “victim”, we will see that family members of people who are killed are victims themselves. Furthermore, Robert Kenney himself very shortly after the assassination of MLK and this statement, became a victim himself directly because he also was killed, and his assassination took place only after two months after this speech. So we have two victims asking not to retaliate, not to respond to hatred with hatred, not to go along that line and to change direction, to follow the path of understanding and of loving, to go in the direction of compassion and love. Remember how we talked about the importance of mediators, of bridge builders in the words of Alexander Langer and how he says that for a peaceful coexistence there is a need for people who are capable of betraying their compactness on one side while belonging to that side. This is the landmark of piece: the monument dedicated to the memory of MLK and RK and it is set up in a park in Minneapolis in the very place where RK’s speech took place, in the very place where the words by the wounded victim, the white brother of a killed person managed to avoid riots and violence in return and that was very productive of immediate practical effects that remain memorable. It shows us this capacity to betray the compactness of one side to go and reach the other, that very difficult Other that can be an enemy for each of us. But if we are really compelled to love as MLK said and he is not saying something because it is nice to say so, he is taking love so seriously as to be killed in the name of this love. Lecture 6 - Victims: rights, needs and protection This lecture is going to be divided into three parts: A, B, C. Today we will analyze the emergence of a scholarly and social and legal attention towards victims, victimhood and victimization focusing on the pros and cons related to this, then we will study the legal status of victims of crimes according to international and European standards then we will discuss lights and shapes of the policies drafted and implemented at the UN’s Council and Europe and EU levels concerning victims in generals and of specific crimes. We will then focus on the rights and needs of victims and on the system of protection set up for them in the EU. Finally, we will review the role of RJ that can play for victims. At the end, I will leave you with a testimony as further exercise. For the study of this topic, we can refer to the learning materials available on bb which include both compulsory readings (International and European Legal sources – UN Declaration; UN Victims Directive / UNODC, Handbook on the Use of RJ programmes in criminal matters) and additional handbooks and other documents. PART A - The emergence or (re-)discovery of the victim: lights and shades First of all, we shall think that victimhood is a reality concerning real persons, in some cases the legal * victim is limited to physical persons only, in others it includes legal entities as well. The life of those who have suffered from a crime, from an abuse of power, from injustices is of extreme complexity. To approach these persons is not easy at all, working with them is very hard, providing assistance and support requires a lot of humility. In the majority of cases, those who encounter victims are faced with a constant pendulum in victim’s life world shifting from deserving and requiring recognition to expecting aid, assistance and support to reject all of this. That of victim is a reality 34 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ where suffering and harm are key concepts as stands in all legal definitions we will see today. Yet victim. Victimhood and victimization are notions that do not stand alone like mere facts or things that one can touch and measures. These notions involve legal elements such as the notion of crime, of criminalization, of abuse of power and entail psychological, social, cultural and even * dimensions. Borrowing the title of the first chapter of the book of Marylin Missin Zabad we can ask ourselves What is a victim? This is a thorny, multifaced question. A victim starts from the fact, negative and often tragic one. The definition of what is a victim cannot stand without including the legal notions that turn those facts into criminal offense. The notion then embraces also social and cultural construction. Furthermore, the concept of victim has many political implications. One of the results of a dominant, punitive models of justice both in theory and in practice has been that legal sciences, criminology, sociology, psychology and so on, have focused on the offender, that is the one deserving punishment. Victims have been left aside the criminal justice system. Rehabilitation and correction too have contributed to attention being payed to offenders only with the result that ad hoc social services have been established for offenders only. Some scholars talk about the rediscovery of the victims, taking place in the last decade of the last century to which RJ has greatly contributed. Others prefer to speak about the re-discovery of victims, focusing on the initial paramount role that victims played in ancient primitive societies where criminal justice was a private justice, revenge in the direct hands of victims. Public criminal justice, public courts and criminal proceedings focused on the offender to punish gradually isolated the victims and of course limited victim’s power over the accused, starting with the law of retaliation dating back the 17th century before Christ, this stated a strict limit to the victim’s revenge: only one eye for an eye, no more. It was only around the ’70 of the past century that people who suffered from crime finally and slowly attracted or re-attracted the attention of academics, especially criminologists. When this happened, victims underwent other injustices. Particularly, in the field of rape and sexual abuse, both academic literature and public opinion have long been biased victims as catalysts of crime and sometimes even accomplices of it. Victim blaming has long been pervasive in both legal culture and public debate. Victimization can be still today a social stigma. From the *, a more sensitive culture of victimhood emerged also thanks to the start of victim-offender mediation program and then RJ but next though victims became being viewed as vulnerable subjects and therefore passive subjects* aid and lacking agencies (keep in mind the concept of vulnerability since it does clay a very important legal role today). Victims have been associated to vulnerability, this in turn has been and still is rejected by some victims who do not like and do not want to be addressed as passive, weak, helpless, vulnerable individuals. Some victims advocate the use of the term survivor instead of victim to stress how, despite victimization, they have not been defeated. Some scholars particularly in the field of violence studies, also advocate the use of the term survivor as being more politically correct than the term victim. There are two simple examples drawn from articles, the Time Magazine and the Bazaars Harper’s Magazine showing how the use of these terms - victim and or survivor – is controversial, intricated. In the article on the Bazaar I’m Not a Sexual Assault “Survivor” – I’m a Victim, the author who is a woman victim of sexual abuse, explains how the concept of victim has been bastardized to the point that it is used to diminish, discredit and disparage anyone who has been subject to the worst of humanity. Victim has become synonymous with a person having a weak state of mind, who is helpless in all areas of life and cannot take responsibility for their actions and “Survivor’s paints a misleading picture of victimhood and healing, promoting a super-human response that encourages victims to get over an unspeakable violation”, “I am not a survivor who has made the best of a bad situation so that others can learn from my experiences”. These are words that can help us understand how their lives are complex, their identity intricated. 35 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ Among those suffered from a crime, a person who acknowledges their * but do not want to be victims forever, the want to be liberated from this stigma and identity, they want to be liberated form an ever- ending victimhood that freezes their life into a single moment of their life-long story. Others do not recognize themselves in neither the identity of victim nor survivor. In some fields of victimization such as collective conflicts, civil wars, victims-survivors were and sometimes still are depicted and presented in public discourse as heroes and martyrs. In support of specific political framework, they use victims or victimhood for political purpose or lie in direct contrast to victim blaming because for instance the people being victimized did not resist the attacks or the violations of rights. One further aspect worth mentioning here is the relationship between victimhood and numbers or figures, that of collective victimization such as the holocaust or the 11th September but there are many examples we could mention, in these cases victims become numbers: 6 million Jews, casualties only in the 11th September attack or in Bhopal the disaster in India estimates of the deaths from a few nearly 4 thousand to as many as 60 thousands but government figures now estimate of 15,000 people killed over the many years. Numbers are impressive but behind the figures, there are singular stories, human beings. We are going to study quite soon the importance to numbers, those figures into names and stories as part of the initiatives and measures linked to injustices. Let us now move to a political science plain: what have victims become in being rediscovered or discovered after having emerged and gave full attention, are they still the forgot and neglected subjects or have they now gained both a relevant legal status and political success as to become, some scholars say, the heroes of our time? According to some scholars indeed the pendulum has swung from one end, the end of isolation and neglection of victims, to the very opposite other hand, that of fame, celebrity and political power of victims. I provide you in the slide some examples quoting academic texts where the predominant roles gained by victims today is criticized. What is claimed is that because an excessive victim- centered culture, victims have gained this huge power and have become like movie stars. Having been victimized allows someone to be in the news, to become powerful and influential and even elected in parliament and this is for the reason of victimization itself. According to these critics, victims have become a very influential and powerful and internationally lobby, nothing like the poor, weak, helpless victim. What these authors also argue is that victimological culture is but one profile of the culture of complaint which in turn is the dark side of a strongly individualistic view of human rights, a typically western first world perspective. Individualistic rights are counterbalanced with solidarity and other duties, resulting in continuous quarreling, complaining, fighting, claiming, suing others in courts. In providing a general overview about victims from within a political science discourse, we must add that some scholars underline how the status of victims is socially constructed according to social and political variables which mirror each given society. During our lectures we have already mentioned the criminologist Neil Christie. Among the best knows by him there is one entitled The Ideal Victim published in 1986 and re-published in 2018 in a collective work edited by Duggan (article available on bb). The Ideal Victim is quite a challenging reading, both fascinating and disturbing. With the notion of ideal victim, Christie refer to “a person or a category of individuals who – when hit by crime – most readily are given the complete and legitimate status of being a victim”. “The ideal victim is, in my use of the term, a sort of public status of the same type and level of abstraction as that for example of a ‘hero’ or a ‘traitor’”. According to him, the victim status is immediately acknowledged by societies to those who appeared to be weak, respectable, not deserving to be blamed for their behavior. In addition, another condition must be met: “a condition, number six, for being an ideal victim, is thus that you are powerful enough 36 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ to make your case known and successfully claim the status of an ideal victim. Or alternatively, that you are not opposed by so strong counter-powers that you cannot be heard”. “Ideal victims need – and create - ideal offenders”. The good status of the former comes together with the bad stigma for the latter: the good status of the victim comes together with the bad status, stigma of the ideal offender. For Christie, being an ideal victim is not of course a victim’s fault, it might be a societal mistake or a cultural bias in favor of categories against others. Actually, next to ideal victims, are non-ideal ones: these are the victims who fall out of political and public political considerations. Why these non-ideal victims fall out the political and legal attention and consideration? These are the wrong or invisible victims. Of course, the study of non-ideal victims is no less interesting than the analysis of why others become ideal victims instead. (Is for instance a me-too movement an example of ideal victims becoming influential and powerful? àQuestion of reflection). If we look at the topic of victims from an unbiased perspective, we can affirm that the emergence of the victim is causing significant and ambiguous changes, their lights and shapes. Changes a victim- centered culture is causing embrace many fields (welfare policies, juridical and social cultures, in crime prevention policies, in international and national criminal justice and HRs courts’ jurisprudence). We see lights in that the victim-sensitive culture is increasing solidarity, care for others, attention in favor of those in need. This particular culture is helping development of RJ as well RJ is developing a good culture of victims. There are shades instead in a victim-centered culture pushing for an increasing punitive policy claiming a fight against impunity and supporting 0 tolerance and penal populism. The victims’ movement in fact is not at all compact nor ambiguous. This comprises a mixing of three major trends or dimensions: A punitive dimension advocating punitiveness, 0 tolerance over criminalization etc. this part of the movement support punitive criminal justice and claims for a stronger influence of victims in criminal trials. We have empirical studies showing how victims impact statements (provided by victims during criminal proceedings) greatly is the severity of punishment adopted by the courts that listen to victims’ statements. A proactive dimension advocating the adoption of a welfare system in favor of victims, not punishment. According to this trend, victims need a parallel justice system made of social services, medical and psychological assistance and support, victims’ insurances and funds, forms of intangible reparations. Victims do not need criminal trials; offenders being punished and so forth but rather support and a system of care. A restorative dimension advocating the use of RJ which is seen as a relevant tool to address both victims and offenders needs and interests in a constructive way. The history of RJ is full of stories initiated by restorative victims (e.g. Mandela and others that initiated the truth and reconciliation commission). Among the very relevant changes by the victims-centered culture there is the issue of the protection of victims. This is a huge issue, full of implications. Insofar, RJ was dealing with crimes and criminals, criminal justice way was to use crime control, crime prevention, crime repression. Victims were not within the radar of criminal justice system but now that victims have emerged, their rights must eb considered. Among the most relevant rights, there is the right of being protected from repeat and secondary victimization, that is victims should not become victimes twice or more by the same or other offenders. Therefore, victims must be protected from repeated victimization. In addition, victims should not suffer more that they have already and in particular they should never suffer any other or additional harm as a result of the intervention of criminal justice itself: this is secondary 37 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ victimization, police, the prosecutors, the judges and any other competent authority within the CJ system may cause the victim to suffer from secondary victimization which of course must be avoided by all means, the way these authorities can cause a secondary trauma to victims. What does the issue of protecting victims entail? The state has a positive obligation to protect victims from becoming victims again as part of the state obligation to protect people’s lives, physical integrity, safety and so fourth. As a consequence, the state has to put in place necessary measures to avoid repeat and secondary victimization and might respond for not doing so or for not doing so effectively. Here is a very relevant case from the Court on Human Rights, a case that concerns Italy: Taipis case (2017) which helps us understand what we are talking again. Talpis suffering from domestic violence from her husband, despite many complaints and reports to the police, Mrs. Talpis and her 9 years old son, have not been protected. Mrs. Talpis husband managed to kill their son and tried to kill her too, she was stepped several times, but she miraculously survived. The European Court of HRs ruled that the state, Italy, had not taken sufficient measures to protect her and her son, the state also failed to investigate properly and effectively as a part of the necessary protection strategy that the state should have put in place. The court in particular found that by failing to take prompt action on the complaint lodged by Mrs. Talpis, national authorities have deprived that complaint of any effect thus creating a situation of impunity conducive to the recurrence of the act of violence which had then led to the attempt murder of Mrs. Talpis and unlikely to the death of her son. The authorities had therefore failed in their obligation to protect the lives of the persons concerned. The Court also found that Mrs. Talpis had with her children in a climate of violence serious enough to qualified as ill treatment and that the manner in which the authority conducted the criminal proceedings pointed to judicial passivity which was incompatible with Art. 3 of the European Convention on HRs. Finally, the court found that Mrs. Talpis had been the victim of discrimination as a woman on account of the inaction of the authorities underestimated the violence in question and thus essentially endorsed it. These last sentences are taken from the press release. The state is condemned for not having prevented future violence and the killing and attempted killing of Mrs. Talpis and her son. The state has been condemned to pay a compensation for the damaged caused by this passivity and inactivity to Mrs. Talpis. Measures to victims may range from protection orders issued against the potential reoffenders, may range from protection orders to monitoring and surveillance, from the obligation to conduct further investigation and act consequently, to the making of necessary steps to secure victims’ participation in the trial where appropriate and protect their rights in the core process. The duty to protect victims increases the range of objectives, aims of criminal justice system that now include also the future of victims and the future safety/ security of them or of potential victims. On one hand, protecting victims seems an obvious aim of CJ but under a deeper scrutiny, it becomes clear that measures of protection may cause an infringement of fundamental liberties of other persons such as the formal offender or the potential reoffender. The difference between criminal punishment and the protection order or electronic bracelet used against the potential reoffender is that criminal punishment is retrospective: it deals with the fact that has been committed in the past, so criminal punishment is based on a committed offend that the judge has to prove beyond any reasonable doubt whereas measures of protection such as a protection order, electronic bracelet used to protect victims is a prospective and predicted measure and by definition, these prospective predictive measures are not grounded on committed acts but are grounded on future possible risks. The emergence of victims must be carefully surveilled against the possible shifts towards unconstitutional, and non-democratic forms of non-justice and this by using increasing monitoring thanks to machine learning algorithms, predictive policing software, bio surveillance. The 38 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ term pre-crime was coined by Philip Dick for his 1956 short novel, the Minority Report. Another Steven Spielberg movie with Tom Cruise: the story is about a criminal justice agency set up to arrest people before committing crimes. PART B We will analyze first the legal framework concerning victims, the EU victims Directives of 2012. Document with links to a selection of UN, EU, Council of Europe legal texts concerning victims of crimes, dedicated folders full texts of major legal tools concerning these subjects are available on bb. Due to the wide and complex topic, we will present only a very small selection if relevant legal resources, the most innovative and recent ones. Victims of crimes and victims of abuse of power are our focus today. The word victim is present also in region wide intergovernmental system of HRs, a system that comprises treaties, courts, commissions and other institutions. Legal documents in this case refer to victims as those whose rights have been violated or infringed being these violations criminal offenses or not. Unlike Europe, Africa and Americas, the Asia-Pacific region does not have a region-wide system to protect and promote HRs, second, the African system refers to people’s rights underlying both the individual and the collective dimension of fundamental intangible rights. This last remark is a sort of anticipation of topics we will discuss in one of our next lectures. As for today, we will focus on the following legal texts: UN, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (29 November 1985) EU, Directive 2012/ 29/ EU of the European Parliament and the Council of 25 October 2012 establishing minimum standards of the rights, support, and protection of victims of crime, and replacing Council Framework Decision 2001/ 220/ JHA Council of Europe, Recommendation Rec (2006)8 on assistance to crime victims Note that the UN declaration and the Council Recommendation are not binding whereas the EU Victims Directive is a binding document. Our analysis will be limited to an overview of the definitions of victims stressing the differences among the three texts. First, the UN 1985 Declaration is the first non-binding document addressing victims, rights and protection: A) VICTIMS OF CRIME 1. “Victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power. 2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term “victim” also includes, where appropriate, the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization. 39 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/ Victims are persons who have suffering: we will find this terminology in all the legal texts and documents we will examine. Victimization is related to both suffering and harm and relevant harms include both tangible harmful consequences such as physical injury or economic damages and intangible consequences such as emotional suffering and the experience of injustice. Second, the individual and collective dimension of victimization according to the UN: many victims do not result only in a mathematical addition of singularities, when entire communities, populations or groups are victimized at the same time, there is something more, there is a collective trauma that needs collective intervention. Of course, individuals matter. When dedicating ourselves to the study of responses to gross violations of Human rights, it is important to provide both individualized and collective treatment considering single persons, families, groups and nations as a whole. The third remark is the notion of person: the UN does not distinguish between physical persons and legal entities which means that this latter, legal persons, are also included in this definition. This is another relevant aspect to keep in mind under certain circumstances, legal persons as such being private or public bodies can be targeted* suffer from the illicit consequences of illegal acts. One further remark is for rescuers. An example of how rescuers can be or become victims according to the definitions mentioned above, is represented by New York Twins Towers attack of 11/9. Not only firefighters were among the casualties thus having a full victim status, there is a movement advocating the inclusion of rescue workers among the victims or survivors. Higher risk and higher incidence of diseases like cancer in workers are widely reported, it is very likely that the cause of this disease is the workers and the first responders being exposed to also toxic substances delivered in the air and on the ground during and after the attack to the towers. If included among the victims, rescue workers could profit from the social insurance, medical and financial measures of protection granted to victims of crime as such. The UN Declaration concerns basic principles of justice for victims of crimes and of abuse of power. This is another interesting concept worth underlying. B) VICTIMS OF ABUSE OF POWER 18. “Victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights. Acts or omissions that do not yet constitute violations of national criminal laws, do not constitute criminal offenses. History of humankind is scattered of laws providing and asking to kill or to subject someone to inhuman treatment and so on. This provision will legal into records and those acts would have not fitted into the above mentioned definition of victim of crime,* requires acts and omissions that are in violations of criminal laws operative within MS. At the same tim,e those provisions infringing fundamental rights were and are unlawful according to international criminal and humanitarian law. What the UN Declaration acknowledges is that in some cases, victims cannot claim having been harmed as a result of illegal, criminal acts while under the notion of victims of abuse of power, they can be fully considered as victims entitled to rights and protection. With the notion of abuse of power for instance, a Jew, a Romani, a homosexual or a disabled person under the Nazi regime would have been recognized and acknowledged a victim status even if the Nazi legal system did not qualify their killings, torturing, treatments as violations of the law, we must say on the contrary it was a completely legal to do such things. So, a victim of the legal system of apartheid in South Africa too fits into the definition above. Genocide and Apartheid are now officially stated as criminal 40 Document shared on https://www.docsity.com/it/restorative-justice-notes-course-of-global-ethics-and-restorative-justice/5842343/