It's Now or Never: A Turning Point for the Consolidation of Restorative Justice in Spain

The EFRJ's vision is that everyone should have the right to access to high quality restorative justice services, at any time and in any case. Over the course of the organization's 25-year history, significant progress has been made towards this goal. Restorative justice has gone from being virtually unknown to becoming a significant part of the legal system of many European countries. Some authors already argue for the incorporation into European criminal law of a new human right of access to restorative justice.

At the EFRJ, we have always maintained that there is no single model of restorative justice. We recognise that it is a flexible and constantly evolving approach. Each country must adapt restorative justice to its own legal culture and organisational structure. There are very different models, such as the Belgian or Finnish, which achieve high quality outcomes even with their respective strengths and weaknesses. In any case, despite the diversity of models between countries, I would say that European political culture has in common a strong predominance of State-led restorative justice services. This differentiates Europe from the United States, where private initiatives predominate, some of which are community-based, and some  for-profit. European restorative justice models are fundamentally public: promoted, controlled, and managed by States. In my opinion, they should remain so. I understand that there are different views in this regard and that this may be an issue open to debate within the EFRJ, however, it is my belief that restorative justice, within the field of criminal justice, should be primarily a responsibility of the State.

At this historical moment, State structures in Europe are very complex. We live in an era in which the division between European, central, regional and local powers is widespread. At a supra-state level, all countries in the European Union must follow the legislative guidelines set by the European institutions. In fact, Directive 2012/29/EU on victims' rights has been one of the greatest drivers of restorative justice. In addition to this supra-state organisation, many countries have internal systems of decentralisation of competences, with some functions assigned to the central government and others to regions or localities, each with its own particularities.

Spain is a highly decentralised state, yet the central government retains legislative powers at the criminal level. The regions, called autonomous communities, only have the power to create and regulate certain material and personnel measures that complement Justice. This has led to a very uneven development of restorative justice in the country.

We could say that some regions, such as Catalonia, the Basque Country, and Navarre, are at the forefront of Europe in terms of restorative developments. Restorative encounters in terrorism cases in the Basque Country, the universalisation of restorative justice services in Catalonia, and the regional law on restorative justice in Navarre are some examples that demonstrate that these regions are firmly committed to promoting high quality restorative justice services. However, for various reasons (which I cannot discuss here but would be worth analysing and discussing), the Spanish central government has not yet developed State-wide restorative justice services. It seems as if it has failed to understand that this form of justice generates valuable benefits for victims, promotes the reintegration of perpetrators, and increases the democratic efficiency of criminal justice systems.

Recently, there has been a legislative breakthrough that could mark a turning point in the development of restorative justice in Spain, but only if the central Government understands that it must create high quality public restorative justice services that are adequately funded and subject to strict operating standards.

As I have noted, restorative justice has been developing in Spain for several decades, although its development is uneven. The most established projects are concentrated in three specific regions: the Basque Country, Catalonia, and Navarre. The governments of these regions have committed to the creation and funding of restorative justice services, while the Ministry of Justice at the state level has not had the same priority. Therefore, while these three autonomous communities have public restorative justice services that serve thousands of victims and offenders each year, restorative processes remain very scarce in the rest of Spain. This leads to unequal access to restorative justice services, which goes against the objective set by Recommendation CM/Rec(2018)8 of the Council of Europe (article 18) and the Venice Declaration, which advocate that restorative justice should be a generally accessible service.

Recently, a legal change has occurred at the state level that could serve to end this inequality in access, although if measures are not taken to develop this law, there is a risk of perpetuating inequalities between different parts of the country.

In April of this year, a law came into force, with effect throughout Spain, which for the first time introduces restorative justice into the criminal procedure code. This new law (Law 1/2025, of January 2, on measures regarding the efficiency of Justice as a Public Service) states that restorative justice must be a voluntary and confidential process that can be used at any stage of the criminal process. The law adds that restorative justice must be free of charge for all parties. Furthermore, the law establishes the effects that restorative processes may have on the criminal process. It is a short yet fairly comprehensive regulation in line with international standards. However, as I have pointed out, the inequality in access to restorative justice services will only be eliminated if quality public restorative justice services are adequately funded throughout the country. 

Therefore, I contend that this is a critical moment for the development of restorative justice in Spain. It is now or never. If the State does not take seriously the need to implement quality public restorative justice services, this procedural regulation will only serve to create frustration and risks to the safety of victims.

In this regard, I would like to recall the classification I made in another article between the different regulatory spaces required by restorative justice: the substantive criminal regulatory space, the procedural criminal regulatory space, and the restorative regulatory space. In general, legal scholars tend to focus on the substantive regulatory space (definition of crimes and penalties) and the procedural regulatory space (definition of the process to be followed to prosecute a crime and impose a penal consequence). In Spain, with the entry into force of this new law, restorative justice is correctly addressed in these two regulatory areas. It has adequately been established that it can be used at any stage of the criminal process and has certain penal effects (reduction of the sentence for serious crimes and dismissal of the proceedings for minor offenses). However, the third area, the restorative regulatory space, remains unregulated.

This third regulatory space should regulate how the provision of restorative justice services are organised. In other words, it should answer, among others, the following questions:

• Is there a public restorative justice service?

• What funding is available for this restorative justice service?

• Is there a universal right of access?

• What happens when a case enters the restorative justice service?

• Who performs the restorative intervention?

• What training should facilitators have?

• What is included in the intervention and what is not?

• Who oversees the quality of the intervention?

All these questions remain unanswered throughout Spain. Only Navarre has answered them through the Autonomous Community Law 4/2023 on restorative justice. This Law establishes that this regional Government should finance a free, universally accessible restorative justice service, with high quality standards and training criteria for facilitators. In the other autonomous communities with restorative justice services, we could say that there is a lower-level administrative regulation through the clauses of the contracts that govern the indirect provision of services (the technical specifications of the contracts).

These issues may seem highly technical, but they have very important consequences for people's lives and for the democratic quality of a country. If a victim in Spain needs to engage in a restorative dialogue with the person who harmed them, whether they can do so depends on the region where the crime occurred. If an offender wants to repair the harm caused through a restorative process, there will be places where they can do so and where they cannot. In short, only in some cases will people have access to quality restorative justice services.

To try to change this situation and ensure that quality restorative justice services are available throughout Spain, last September the EFRJ presented a technical document to the Spanish Ministry of Justice, together with GEMME, outlining the key guidelines for the creation of these services. Specifically, we emphasised the need for adequate funding, specialised personnel, ensuring universal access, establishing quality standards, and facilitating coordination with judicial bodies.

We hope that these proposals will be accepted and that Spain achieves a balanced, egalitarian, and universal development of restorative justice. If this is not done by the State, there is a risk of seeing the proliferation of disorganised private services without quality control. This could mean the end, rather than the consolidation, of restorative justice in Spain.

Therefore, it's now or never.

Jorge Ollero Perán is a Board member of the EFRJ.