Following the evaluation of the Victim’s Rights Directive (Directive 2012/29/EU - VRD) by the European Commission in 2021 - for which the EFRJ contributed by sending its evaluation on the restorative justice provisions (here more information) - the European Commission has included in its Work Programme for 2022 a proposal for a revision of the VRD. As part of the revision process, the European Commission launched a public consultation aimed to identifying possible policy options and ways in which the existing rights of victims could be further strengthened.
Building on the above mentioned EFRJ Position Paper on the Evaluation of the Restorative Justice provisions of the VRD and thanks to the contribution of EFRJ members and inputs of relevant stakeholders, the EFRJ contributed to the consultation by submitting to the European Commission its position paper. Grounded on evidence-based arguments and supported by relevant international (legal and policy) documents, we present concrete recommendations on how restorative justice could be included in the revised VRD.
A special thanks goes to Ian Marder, Ivo Aartsen, Antonio Buonatesta and Antony Pemberton for their precious contributions.
Our main argument is that to ensure that the benefits of restorative justice and safeguards for victims are realised, an effective and equal access to restorative justice services should be guaranteed for all victims of crime who freely want to access restorative justice. As presented in our position paper this may take the form of establishing the right of access to restorative justice for victims of crime in the VRD (Policy Option 1) or, following the Council of Europe Recommendation on restorative justice, integrating a rule in the revised VRD that restorative justice should be a generally available service at all stages of the criminal justice process and for all types of crime (Rule 18, 19 and 6 – Policy Option 2).
The main difference between Policy Options 1 and 2 is that the latter would not create a right that is enforceable in the criminal justice process for victims, but still provide the framework (based on existing service providers) to make restorative justice services generally available for victims, as well as promoting the establishment and enlarging of restorative justice services in all EU member states and provide the necessary quality standards within these services.
The aim of the EFRJ concerning the revision of the Victims’ Rights Directive (VRD) is to provide a right to access restorative justice services, at any time and in any type of case. This at minimum entails:
- that the access to restorative justice should not depend on offender or offence characteristics but on the needs of the victim and their voluntarily willingness to participate in a restorative process – in case the restorative justice process takes place as diversion or is connected to the criminal justice procedure, criteria on the offence and the offender can be taken into account by the judiciary during the decision on the effects of a successful restorative justice process, but not as an accessibility criterion for victims;
- that restorative justice services should be accessible in all stages of the criminal procedure (including after sentencing and after a sentence has been served);
- the right to receive full information about the nature, availability and accessibility of restorative justice services;
- effective and systematic information and referral procedures taking into consideration the voluntary nature of the process and the importance of victims receiving accurate information directly from restorative justice services;
- the right to an individualised, case-by-case assessment with, and ongoing support from, competent restorative justice services. We believe that it is more beneficial for victims if not legal authorities, but restorative justice services should assess the appropriateness of restorative justice in each case;
- restorative justice services need to be available in each EU member states and need to be governed by recognised standards;
- restorative justice services should be free of charge.
In case establishing a right of access for victims to restorative justice proves to be too ambitious at this moment, we propose to amend the VRD to include restorative justice that should be a generally available service for victims at all stages of the criminal justice process and for all types of crime. This entails:
- restorative justice services are available in all EU MSs and governed by recognised standards;
- victims can contact and initiate a restorative justice process directly at the restorative justice service parallel or after the criminal justice procedure;
- the right to receive full information about the nature, availability and accessibility of restorative justice services, ideally directly from restorative justice services;
- restorative justice is offered free of charge.
In EFRJ position paper we propose drafting suggestions concerning the restorative justice provisions in the revised VRD mainly inspired by the 2018 Council of Europe Recommendation and the recent (2021) Council of Europe Venice Declaration.
Beyond the revision of the VRD, we believe that further initiatives promoted by the EU are needed to increase the accessibility and availability of restorative justice services and to ensure a balanced approach between all parties involved.
This need for a balanced and broad, social approach is one of the reasons why the EFRJ will continue to advocate for an EU binding act on restorative justice (such as a standalone Directive) to provide a systematic and comprehensive right to access restorative justice services for all victims and offenders, and others affected by or involved in harmful events. Beyond the revision of the VRD and the actual provisions on restorative justice in the VRD, the EFRJ calls on the European Commission:
- to consider a comprehensive EU binding act (such as a Directive) on restorative justice;
- to include restorative justice in other relevant EU policies and legislation on, but also beyond, victims’ rights (e.g. rights of offenders to receive information, child-friendly justice, combatting hate crime, cybercrime, violent extremism, sexual and gender-based violence, environmental crime etc.);
- to include restorative justice in the EU awareness campaigns on victims’ rights and provide (financial) support to restorative justice services as foreseen by the EU Strategy on Victims’ Rights.