In the last month of 2021 the Ministers of Justice of the member states of the Council of Europe have come together in Venice, and on the initiative of the Italian presidency, have discussed the role of restorative justice in criminal matters, and adopted the Venice Declaration. The EFRJ was officially represented the event. In this article Dr Ian Marder and Dr Petra Masopust Šachová review the development.
In conversations with restorative justice advocates over 2021, concerns emerged that the Declaration risked stagnating, or even watering down, European commitments to restorative justice, considering the highly progressive detail of the Recommendation that it sought to follow. Ultimately, however, it successfully reiterated core elements of the Recommendation – its initial paragraphs confirming that Ministers ‘fully support’ the Recommendation, before defining and outlining the primary benefits of restorative justice in accordance with the Recommendation’s principles and provisions.
Moreover, the Declaration’s language furthers both the spirit and content of the Recommendation in several ways. Most importantly for the development of restorative justice services, Paragraph 15 calls for governments to ‘stimulate […] a wide implementation of restorative justice, its principles and methods,’ both alongside and as an alternative to criminal proceedings. The Declaration follows the Recommendation (Rule 18) in recognising the universal application of restorative justice for all offence types, even remarking on ‘the possible positive impact of restorative justice paths also on countering the radicalisation of individuals’. This is significant given the political sensitivity of radicalisation, and the likelihood that many would presume that restorative justice was inappropriate in this setting (see also Biffi, 2021). Through these general and specific observations, the Committee of Ministers clearly recognises that no offence type is off limits for restorative justice.
Paragraph 10 frames restorative justice as ‘a broader culture that should permeate the criminal justice system based on the participation of the victim and the offender on a voluntary basis, as well as other affected parties and the wider community in addressing and repairing the harm caused by crime’. This builds on the Recommendation’s commentary (p.2), which called for ‘a broader shift in criminal justice across Europe towards a more restorative culture and approach’. Similarly, the Recommendation asks that all practitioners receive training to ‘understand [restorative] principles and […] apply them in the course of their day-to-day work’ (Rule 57). It also outlines that criminal justice institutions should apply restorative principles across their work (Rule 59), use restorative processes to resolve conflicts outside the criminal procedure (Rule 60), and proactively build and maintain relationships (Rule 61). The more that the international framework references these ideas, the more that calls for their implementation will be normalised in the eyes of domestic stakeholders.
The Declaration also provides that restorative justice should be taught in higher education, ‘invit[ing] the Council of Europe to encourage and assist its member States to […] reflect on how to include the principles, methods, practices and safeguards of restorative justice in university curricula and other tertiary level education programmes for jurists’. This builds on the commentary to Rule 57: ‘university courses which pertain to criminology or to the administration of the criminal justice system should include restorative justice as part of their curricula.’ Not only must lawyers and judges fully understand restorative justice to enable and support its use (Marder and Wexler, 2021), but their degrees might also use restorative practices to support students to reflect on the goals of their practice and develop an explicit ‘philosophy of lawyering’ (Vedananda, 2020). Academics wishing to incorporate restorative justice in their curricula should note these provisions – and join the new Restorative Justice Pedagogy Network, which organises regular workshops on the teaching of restorative justice in universities.
The Declaration coincides with a rapidly evolving international framework, and with many jurisdictions (including Ireland, Scotland, Estonia, the Czech Republic and Italy, among others) accelerating the legal and policy development of restorative justice, introducing or expanding services, and using restorative practices to change institutional cultures. In 2020, one of us analysed the changes in the international framework between 2018 and 2020 (Marder, 2020). Since then, there have been developments at the Council of Europe, European Union and United Nations. These include:
- Council of Europe Recommendation CM/Rec(2021)6 regarding the assessment, management and reintegration of persons accused or convicted of a sexual offence states: ‘Participation in restorative justice interventions, where available and appropriate, should be facilitated by providing information on the[ir] nature, relevance and availability’ (Rule 33).
- The forthcoming revisions to Recommendation CM/Rec(2006)8 on assistance to crime victims seems likely to include extensive additions on restorative justice services.
- Within the EU, the European Commission recently concluded its consultation to evaluate the Victims’ Directive, to which the European Forum for Restorative Justice (2021) contributed.
- The EU’s Judicial Training Strategy (2021-24) considers that judges should be ‘trained to better support and communicate with’ victims (p.3).
- At the United Nations, the Kyoto Declaration (2021) called for the development of ‘restorative justice processes at relevant stages in criminal proceedings in order to assist the recovery of victims and the reintegration of offenders” (Art. 42).
- The UN also published a common position on incarceration (2021: 9), which states: ‘the focus of criminal justice responses should be shifted from imposing punishment and isolation to investing in longer-term strategies for crime prevention, rehabilitation, restorative justice and social reintegration, with an emphasis on the most vulnerable’.
Europe may see an imminent opportunity to lobby for further progress, if a decision is made to revise the EU Victims’ Directive. There may also be scope to develop a binding legal instrument on restorative justice at that level. However, the European framework is already clear: those who are responsible for domestic criminal law and criminal justice policies and practices should act to mainstream restorative justice throughout their criminal justice systems. As the Declaration comments, the Council of Europe is well-placed to connect stakeholders and provide resources to support this work, but the majority of the work must take place at the national level, through an inclusive policy process led by governments, in collaboration with justice agencies, restorative justice practitioners and civil society.
As societies open up after COVID-19, many movements and groups will seek to capture governments’ attention and focus. Those that succeed will be those with the best stories, and that are best organised to take the right actions at the right times. We must collaborate to keep the pressure on at the highest levels, if we expect to maintain this momentum and to translate international policy into real changes on the ground.
Dr Petra Masopust Šachová is the Chairperson of the Czech Institute for Restorative Justice and the Board member of the European Forum for Restorative Justice.