Toolkit on Diversion and Alternatives to Detention

Definitions

 
 

Restorative Justice

• Definition
• Key points
• Ground rules / legal safeguards
 
Definition:
Restorative justice is an approach in which the victim/survivor and offender, and in some cases other persons affected by a crime, “participate actively together in the resolution of matters arising from the crime, generally with the help of a facilitator.”[1]
Restorative justice is a way of responding to criminal behaviour which emphasises repairing the harm caused by the crime and ‘restoring’ harmony as much as possible between offender, victim/survivor and society. It mainly involves some form of mediation and conflict resolution and often results in apologies, reparation, compensation and community service. In contrast to ‘retributive justice’, which focuses on punishing the offender via a two-way relationship (offender and state), ‘restorative justice’ addresses harm, needs, accountability and obligations via a three-way relationship (offender, victim/survivor and society). Restorative justice: makes the offender responsible for reparation of harm caused by the offence; gives the offender an opportunity to prove his/her positive capacity and qualities; tackles guilt feelings in a positive way; and involves others who have a role in conflict resolution including victims/survivors, parents, extended family members, schools and peers.
 
Key points:
1. Diversion and alternatives to detention are specific mechanisms or responses which, if implemented in line with the necessary ground rules and legal safeguards, will help to promote treatment of children in conflict with the law in line with the aims set out in the CRC.

2. However, these ‘mechanisms’ and 'reponses' (diversion and alternatives to detention) do not automatically use a restorative justice ‘approach’. 'Diversion' and 'alternatives to detention' are not synonymous with 'restorative justice'.

3. Restorative justice is one important approach to working with children in conflict with the law which should be assessed and implemented on a case by case basis.

4. In general, a restorative justice approach can be said [2] to correspond more closely than a retributive justice approach to the aims of justice for children in conflict with the law as expressed in Article 40.1 of the CRC [3], the Committee on the Rights of the Child General Comment No. 10 [4] and the Beijing Rules [5]).

5. The strengths of the restorative justice approach are that it:
     o Establishes a direct, concrete and immediate link between the offence and its consequences, including the social reaction;
     o Holds the offender fully accountable for his or her actions, helps him/her to understand the implications and makes him/her responsible for the reparation of the harm caused by the offence;
     o Involves the victim / survivor and the community in setting the terms of accountability and monitoring and supporting completion of obligations, thereby ensuring that justice is seen to be done and maximising the likelihood of the offender being successfully reintegrated back into the community; 
     o Gives the offender an opportunity to prove his/her capacity and qualities and to tackle guilt feelings, common among many children in conflict with the law, in a positive way;
     o Reflects the strengths of many traditional and cultural justice systems, thereby rendering it acceptable – and often welcomed – by communities in relevant countries.

6. In addition to addressing the developmental needs and accountability of the child offender, the involvement of the wider community in the restorative justice approach and the placing of the victim/survivor in a more central position can mean that the benefits of a restorative justice approach are greater than those achieved through a narrower focus only on the child (e.g. through a community-based programme which seeks to address the root causes of the child's offending behaviour but which may fail to address the needs of the victim/survivor and wider community).

7. However, when implementing a restorative justice response, the involvement of the victim/survivor and commmunity should not be at the expense of adequate support for the child and family where necessary. The response must also tackle the root causes of offending behaviour.

8. Diversion and alternatives to detention can be very compatible with a restorative justice approach. Restorative justice can inspire decision-making both within and outside the formal court system. For example: within the formal court system, a restorative justice meeting can make recommendations to the court on how a matter should be dealt with; outside the formal court system, restorative justice can take place as part of a diversion process where the court is not involved.

9. Alternatives to detention and (especially) diversion are ideal opportunities to capitalise on the strengths of the restorative justice approach where possible and appropriate through (e.g.) victim-offender mediation, family group conferencing and community justice committees and mediation. These are all ways in which individuals affected by an offence - such as offender, victim / survivor, their families and other community members as appropriate - come together to decide collectively how to repair the harm done, generally with the help of a facilitator. [See the toolkit section on the Restorative justice approach for more details on how these responses work in practice and for links to the 2006 UNODC Handbook on Restorative Justice Programmes which is an essential reference guide for programming in this area].

10. However, a restorative justice approach is not always appropriate in every case. There are many successful diversion and alternative sentencing options which do not involve restorative justice elements. For example, a simple police caution in response to a minor offence does not need to be complicated by convening a full-scale 'restorative conference'. Indeed, this response would be contrary to the principle of proportionality and potentially counter-productive. There may also be cases where the victim/survivor and/or offender do not consent to a restorative justice approach in which case other child rights-based options need to be availble for the child.[6]

11. Whilst theorists and practitioners of restorative justice are calling for a 'maximalist approach' to implementation (i.e. that restorative justice should be implemented, where appropriate, in as many situations as possible [7]), it is important nevertheless to understand that a restorative justice approach is not a set 'model' which needs to be adopted in its entirety and which overrides all other approaches. Instead it should be seen as consisting of a continuum of possible responses, the range of which can - and should - be considered on a case by case basis for children in conflict with the law.

12. As with any approach, it is the way in which it is applied which determines its success. Once again, diversion options and alternatives to detention which adopt a restorative justice approach, must also be child rights-based. The ground rules / legal safeguards highlighted in the discussion sections for ‘diversion’ and ‘alternatives to detention’ must be applied at all times. This includes not accepting 'bad practices' such as public naming and shaming of children which can sometimes be mis-labelled as 'restorative justice'. In addition to the ground rules for 'diversion' and 'alternatives', and the principles set out in the (UN) Standard Minimum Rules for Non-custodial Measures (Tokyo Rules), there are a series of legal safeguards below specifically for restorative justice. 
 
Ground rules / legal safeguards [8]
The (UN) Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (2002) refers to the following fundamental safeguards (para. 13):

1. The right to consult with legal counsel: The victim and the offender should have the right to consult with legal counsel concerning the restorative process and, where necessary, to translation and/or interpretation.
2. The right of [children] to the assistance of a parent or guardian: [Children] should, in addition, have the right to the assistance of a parent or guardian.
3. The right to be fully informed: Before agreeing to participate in restorative processes, the parties should be fully informed of their rights, the nature of the process and the possible consequences of their decision.
4. The right not to participate: Neither the victim nor the offender should be coerced, or induced by unfair means, to participate in restorative processes or to accept restorative outcomes. Their consent is required. Children may need special advice and assistance before being able to form a valid and informed consent.

In addition, other important safeguards (see paras. 14 to 17) in law or in policy should be set in place:

1. Participation is not evidence of guilt: Participation of an offender in a restorative justice process should not be used as evidence of admission of guilt in subsequent legal proceedings (para. 8).
2. Agreements should be voluntary and be reasonable: Agreements arising out of a restorative process should be arrived at voluntarily and should contain only reasonable and proportionate obligations (para. 7).
3. Confidentiality of proceedings: “Discussions in restorative processes that are not conducted in public should be confidential, and should not be disclosed subsequently, except with the agreement of the parties or as required by national law” (para. 14). Other human rights instruments also aim to protect children’s privacy and the confidentiality of proceedings involving children. They are also
relevant here.
4. Judicial supervision: “The results of agreements arising out of restorative justice programmes should, where appropriate, be judicially supervised or incorporated into judicial decisions or judgements”
(para. 15). Whenever that occurs, the outcome should have the same status as any other judicial decision. This means that in most systems the outcome could therefore be appealed by the offender or the prosecution. These outcomes should preclude prosecution in respect to the same facts.
5. Failure to reach an agreement: Failure to reach an agreement should not be used against the offender in subsequent criminal justice proceedings.
6. No increased punishment for failure to implement an agreement: Failure to implement an agreement made in the course of a restorative justice process (other than a judicial decision or judgement) should not be used as justification for a more severe sentence in subsequent criminal proceedings.

"The Basic Principles does not assume that legislation will always be necessary to ensure that fundamental legal safeguards are in place to adequately protect participants in the restorative justice process and ensure the overall
fairness of the process." [UNODC p. 35]

"The Basic Principles makes it clear that, in some cases, it may be sufficient to adopt policies and clear guidelines to guide the new programmes and establish the necessary normative framework. They stipulate (in para. 12) that such guidelines should cover inter alia:
(a) The conditions for the referral of cases to restorative justice programmes;
(b) The handling of cases following a restorative process;
(c) The qualifications, training and assessment of facilitators;
(d) The administration of restorative justice programmes;
(e) Standards of competence and rules of conduct governing the operation of restorative justice programmes." [UNODC p. 35] 
 
Learn more about restorative justice

Footnotes:

1. UN Basic Principles on the use of restorative justice programmes in criminal matters.
2. "The choice of a justice system must therefore take into account the prescriptions of the CRC, notably the general principle of the best interests of the child, the principle of dignity and the objectives of making the offender accountable for their actions, repairing the harm done and restoring social links. It seems quite clear that the Committee on the Rights of the Child considers restorative justice to respond to these requirements." Jean Zermatten, Vice-President of the Committee on the Rights of the Child, refering to CRC Articles 40.1, 40.3(d), 40.4 and General Comment 10 paragraphs 3, 4, 10, 27, in 'Justice réparatrice / restauratrice - position du Comité' ('Restorative Justice - Position of the Committee'), presentation at the First World Congress on Restorative Juvenile Justice, Lima, Peru, 4-7 November 2009 [translation from French by the toolkit author].
3. “States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.”
4. "The protection of the best interests of the child means, for instance, that the traditional objectives of criminal justice, such as repression/retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offenders. This can be done in concert with attention to effective public safety." Committee on the Rights of the Child, General Comment No. 10, paragraph 10.
5. The UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) Rules 5.1 and 17.1(b) and accompanying commentaries emphasise the importance of the child’s well-being and approaches which avoid merely punitive sanctions.
6. For example, the Tajikistan Juvenile Justice Alternatives Project (featured in this toolkit) includes family group conferencing as one element but this element is not often used compared to other options and it is deemed not to be appropriate for the child or country context. However, even without a significant restorative justice component the project overall has received very positive feedback from children, parents and referral bodies, and has documented success in reducing recidivism.
7. First World Congress on Restorative Juvenile Justice, Lima, Peru, 4-7 November 2009.
8. This section is taken from the UNODC Handbook on Restorative Justice Programmes, 2006, pages 33-35 - with only slight adaptation.

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