Our Commentary on the EU Directive on Environmental Protection through Criminal Law

On May 3rd 2021 our Working Group on Environmental Restorative Justice has submitted a commentary to the European Commission to revise the EU Directive 2008/99/EC on Environmental Protection through Criminal Law. The focus of the commentary is on the potential of restorative justice in cases of environmental crime, taking into account the complexity and specific nature of various forms of environmental harm and ecocide, and how existing restorative justice processes could be adapted in order to make truly restorative responses possible. Our submission includes innovative examples in some countries, and recommendations to the European Commission.

The commentary builds on previous work that was already been done in the European Forum For Restorative Justice (‘Environmental Restorative Justice: Restoring the Future’, Biffi & Pali, 2019) and on a recent Special Issue of The International Journal of Restorative Justice.

Innovative examples of environmental restorative justice are included in the commentary, which concludes with the following recommendations:   

1. Restorative justice theory, principles and practices as empirically evaluated offer convincing arguments to bring these ideas into practice in complex contexts such as environmental crime and harms, be it that adjustments of existing restorative justice processes will be needed. That the application of restorative justice to cases of environmental crime is not utopian, is convincingly demonstrated in innovative practices of restorative justice within or alongside criminal justice processes in various countries. Restorative justice can adopt different formats, from inclusive, voluntary participation by all stakeholders including the community, to sentencing models where reparation to the environment is imposed on the offending party in a multilateral way.  
2. Criminal law provisions related to environmental crime should not operate in an isolated way, but must be conceptually integrated in a more encompassing regulatory and sanctioning framework entailing a broader range of formal and informal justice mechanisms. Restorative justice has to be situated at the bridge between different types of justice mechanisms.
3. Constructing a legal basis for the use of restorative justice in processes dealing with environmental crime is essential. Legislation should primarily facilitate (not restrict) the use of restorative justice in these cases by providing a safe space (legally, socially, psychologically) where genuine dialogue is encouraged and supported and where effective reparation can take place.  
4. Community involvement is key, as a criminal justice system alone will never be able to deal with the complexity of environmental harm. Likewise, environmental crime, because of its intrusive character at societal level, offers unique opportunities to capacitate civil society in becoming more familiar with justice mechanisms and to acquire more civic competences in this respect.
5. Still, more ad hoc expertise has to be built. We strongly recommend setting up pilot or test cases where restorative justice practices can be applied for a variety of environmental criminal cases in a way that fits into a European legal, social, economic and cultural context. Proper evaluation and further research is crucial, as well as advanced training for facilitators, legal actors, corporate representatives, environmental groups and other stakeholders.
6. The European institutions can and should play a more proactive role in promoting restorative justice also for cases of environmental crime. The European Forum has developed a strong expertise in the implementation of restorative justice, including cooperation with, and training of, legal professionals and other groups through European projects. Notwithstanding its potential as supported by scientific evidence and the adoption of a legal basis in many countries, restorative justice remains strongly underused. Elaborating a EU Directive on Restorative Justice should be considered.