Introduction

In scientific literature, definitions of restorative justice are presented around its process, its purpose, or both. According to Tony Marshall, restorative justice is ‘a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future’ (1999, p. 5). In such a process-centered definition, negotiation or consensualism become key criteria for restorative justice, an approach that belongs to minimalist or purist movements. 

The concept then attaches little importance to the purpose of restorative justice, namely the repair or even the restoration of the wrongs suffered. For Bazemore and Walgrave, defenders of a maximalist approach, restorative justice cannot be reduced to its process and aims at the restoration of its participants affected by the offence. It is

"every action that is primarily oriented towards doing justice by repairing the harm that has been caused by crime" (Bazemore and Walgrave, 1999, p. 48). 

Even if it may concern only the offender, it is an approach that favours, in a formal or informal process, whether imposed or in the context of a negotiation process, the reparation of the harm caused by the offence.

Beyond the definitions, sources of tension between these two models thus revolve around the intervention framework for restorative justice and its place in the criminal justice system. Minimalists believe that restorative justice and coercion are opposed and cannot coexist since this would hinder the participants’ restoration process. Maximalists, on the other hand, see a restorative role in punishment and coercion (such as a measure of reparation, or other criminal justice measures). Walgrave argues that duress can be an integral part of restorative justice. He states:

"We [maximalists] opt for accepting coercion when voluntariness is not achieved and when it is deemed necessary to respond to the offence" (Walgrave, 2000, p. 422). 

The maximalists believe that offenders need a framework, a structure, and can participate in repairing the harm they have done. Finally, the maximalist and minimalist currents of restorative justice ‘clash’ in their institutionalisation within the criminal justice system. On the one hand, purist theorists consider the development within the criminal justice system of restorative justice while guaranteeing the rules of procedure. The institutionalisation of restorative justice is then seen ‘outside’ the criminal justice system (London, 2003, p. 177). On the other hand, maximalists believe that restorative justice can align with, integrate and transform the criminal justice system.

Legal framework of restorative justice between maximalist and minimalist approaches

If restorative practices existed before the ‘restorative justice’ Law No. 2014-896 of August 15, 2014, relating to the individualisation of sentences and strengthening the effectiveness of criminal sanctions (Journal officiel de la République française (JORF), 2014), their current implementations are coloured by successive judicial reforms and young offender management policies. Many youth services are compelled to follow a rapid pace in the effective implementation of young offending measures, thus altering the approach towards the offender as well as that of his/her treatment. More particularly, the measure of penal reparation, although it is part of the maximalist movement of restorative justice by its ‘objective’ to ‘repair,’ sees its approach diverted because of the successive reforms of managerial policies (short time frames of treatment and intervention). 

Thus, the young offender is apprehended according to the act committed and, accompanied by his/her supervisor, performs a ‘activity of reparation.’ For the same category of offence, several offenders can happen to be in the same ‘activity of reparation.’ Reparation focuses more on the act than on the consequences and repercussions of the offence. Reparation does not include all the dimensions of the harm caused by the offence: damage, psychological and relational suffering caused to the victim and to the community in relation to the offence and the social harm that the offender causes to himself (Filippi, 2015).

Since Law No. 2014-896 came into force on October 1, 2014, restorative justice ‘measures’ have found a place in article 10–1 of the Code de procédure pénale (CPP). The presentation of restorative justice measures therein is part of the maximalist movement. They are presented through their purpose, oriented towards the restoration and reparation of the consequences of the offence: 

"A restorative justice measure constitutes any measure allowing a victim along with the perpetrator of the offence to participate actively in the resolution of the difficulties resulting from the offence, and in particular in reparation for the harms of any kind resulting from its commission" (Gouvernement de la République française, 2020, Article 10-1).

Three years later the Circular of March 15, 2017 (Ministère de la justice, 2017), concerning the implementation of these measures at all stages of the judicial procedure was published. Entitled ‘implementation of applicable restorative justice immediately following from articles 10-1, … ’, the objective of the Circular is to develop the implementation of restorative justice practice in professional practices (magistrate, lawyer, youth worker, social worker and psychologist) with adults and juvenile offenders. In the introductory paragraphs, restorative justice is presented according to the maximalist approached theorised by Walgrave. It is

"… a model of justice complementary to the criminal process which consists in restoring the social ties …"

"… in order to understand the totality of the personal, family and social repercussions linked to the commission of the acts, …" (p. 1)

and it assimilates, to a certain extent, educational judicial measures such as penal mediation and penal reparation

If restorative justice is presented, in the Circular, according to its purpose, it is also considered as taking place within the criminal justice system with the express consent of the participants, independently and confidentially (p. 3). 

Confidentiality is put forward as a requirement but can nevertheless be breached under two conditions: 

"if the parties otherwise agree and in cases where a higher interest linked to the need to warn of or prevent offences justifies …" (Gouvernement de la République française, 2020, Article 10-1). 

Through this confidentiality, the autonomy of restorative justice in relation to criminal procedure is ensured. Even if its complementarity is mentioned (effects), its autonomy is just as valued. The Circular therefore takes a minimalist approach, arguing that:

The innovative nature of this measure rests on its autonomy from criminal proceedings. It constitutes a route offered to the parties, optional, and without consequence for the progress of the criminal proceedings which is exercised in parallel (p. 2).

This autonomy is confirmed by the ‘Chinese wall’ (imperméabilité p. 4) between the two arrangements, 

"ensured by the absence of any element relating to the restorative justice measure in the criminal records, to avoid any risk of influencing the decision to begin legal proceedings, the pronouncement of sentence, the amount of damages or the granting of a reduced sentence (p. 4)."

"… the measure of restorative justice has no effect on the award of possible harms due to the civil party" (Coustet, 2019).

Its place ‘in’ the criminal procedure is peripheral.

If the discourse of the Circular was part of a maximalist approach, the criminal procedure for young offenders could, while preserving the confidentiality of the exchanges, envisage the integration of restorative justice within it. While in the Circular, the role of the magistrate at the origin of the proposal for the restorative justice measure is to exercise control over the legality of the ‘measure,’ it may be necessary, in the maximalist approach, to inform the magistrate about its progress. Vigilance can be exercised about what to send or not to the magistrate. The welfare model, characterised by a desire for education and empowerment, could envisage the creation of a succinct report on the commitments of the participants and its transmission to the magistrate. It would ensure that this did not infringe the interests of the young person and ensure their empowerment. In this situation, it is legitimate to think that this information will influence the magistrate since he/she will be aware that a young person is participating in restorative justice or that he/she has announced his/her participation in such a process during a hearing. The idea could therefore be that participation or not in a restorative justice process should not be disadvantageous for young people. restorative justice in this maximalist perspective would extend the restorative objective till the judicial outcome (Filippi, 2018).

Tomorrow in the Juvenile Criminal Justice Code (JCJC)

Restorative justice appears twice in the forthcoming Code de la justice pénale des mineurs (JCJC) (Journal officiel de la République française (JORF), 2019); first of all, at the beginning of the new code in article L13–4 and then, in Chapter II: Judicial educational measure, where Article L112–8 makes provision for 

  1. A voluntary activity or reparation in respect of the victim or for the benefit of the community; 
  2. Mediation between the young person and the victim. 

In the first formulation, the proposal for restorative justice is located in the common provisions, thus demonstrating the importance accorded to this philosophy in the welfare model. Article L13–4 presents the possibility of using restorative justice at any stage of the procedure: 

"It can be proposed to the victim and the perpetrator of the offence that they have recourse to restorative justice, in accordance with article 10–1 of the code of criminal procedure, at the time of any procedure concerning a minor and at all stages of it, including during the execution of the sentence, provided that the facts have been recognised. Restorative justice can only be implemented if the degree of maturity and the capacity for discernment of the minor allow it, and after having obtained the consent of the legal representatives."

This wording refers to article 10–1 of the code of criminal procedure and the 2014 law. The use of the concept of restorative justice makes it possible to cover all of the ‘measures’ at the penal level as envisaged by the Circular of 15 March 2017. Nevertheless, this is perhaps where recommendations in the formulation of this article should be made in order to be as close as possible to the European Recommendation published in October 2018 (Council of Europe, 2018) on restorative justice in criminal matters which confirms the desire to develop a maximalist approach (Filippi, 2020).

The second formulation presents the mediation measure within an educational framework, offering mediation through the ‘reparation module’ (L112–8, 9 and 10). The context for the use of mediation seems to be in contradiction with the Circular of March 15, 2017 (Ministère de la justice, 2017). In these provisions, mediation between the minor and the victim is considered as obligatory. The judicial authority orders the reparation module in which there is mediation. Also, the judicial authority needs feedback from the reparation module because of the legal issues related to the pronouncement of the sanction. The service or authorised associative sector ‘informs the judicial authority of the implementation of the module reparation.’ In the context of this reform, it will be necessary to define mediation as a voluntary process. Also, it will be necessary to record the intervention of a third party in finding a reconciliation and/or solutions between the parties. It is no longer the judicial authority, but the designated service, that assesses the feasibility of mediation and the capacity of the minor to take part in this process. 

In conclusion, restorative justice integrates a large network of professionals of justice; for this, the service in charge of mediation would draw up a document of joint care which formalises the modalities of communication, coordination and exchange of information between this service and that of the judicial authority which authorises the judicial educational measure. Whereas the wish has been, since 2014, for the autonomy of the process from the judicial procedure, the service in charge of the aforementioned mediation, in addition to informing the other collaborators responsible for the educational follow-up of the minor, informs the judge about significant difficulties and can request a modification of the order or its revision. In France, are we in a ‘twin track’ of restorative justice with juveniles?

Conclusion

If the first text of the reform presents the delicate balance of minimalist and maximalist approaches to restorative justice. In the second formulation (L112-8, 9 and 10) which concerns mediation in the reparation module, two observations should be made: 

  • the first is that these judicial measures are the equivalent of measures of prejudicial supervised liberty, and concern mostly audiences with high risk of recidivism — what about the proposal for first-time offenders (would this be the general device that would come into play?). 
  • the second amounts to questions raised about the respect for the empowerment processes that characterise restorative justice. Will the offenders, the victims and the communities   have a choice in time, procedure and form of restorative justice? It seems not. 

The fragile balance found in the 2017 Circular no longer seems to be in the new JCJC especially for the most at-risk juvenile profiles.

Jessica Filippi filippi.jessica64@gmail.com

The views presented in this article are the views of the author and do not necessarily represent the views of the EFRJ.

References

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Council of Europe (2018). Recommendation CM/Rec(2018)8 of the Committee of Ministers to member States concerning restorative justice in criminal matters. https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016808e35f3.

Coustet, T. (2019). [https://www.dalloz-actualite.fr/flash/justice-restaurative-un-dispositif-encore-trop-peu-utilise#.Xz5dsOXTWgM||Justice restaurative: un dispositif encore trop peu utilisé.] Dallos actualité.

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Filippi, J. (2018). Restorative justice for young offenders: an analysis of the French circular confronting a European and national legal perspective. UCL Journal of law and jurisprudence 7(1):142–162. 10.14324/111.2052-1871.099.

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London, R. (2003). The restoration of trust: bringing restorative justice from the margins to the mainstream. Criminal Justice Studies 16(3):175–195. Https://doi.org/10.1080/0888431032000151844.

Marshall, T.F. (1999). Restorative justice: an overview. London: Home Office Research Development and Statistics Directorate. 

Ministère de la justice (2017). Circulaire du 15 mars 2017 relative à la mise en œuvre de la justice restaurative applicable immédiatement suite aux articles 10-1, 10-2 et 707 du code de procédure pénale, issus des articles 18 et 24 de la loi n 2014-896 du 15 août 2014. [http://circulaire.legifrance.gouv.fr/pdf/2017/04/cir_42000.pdf||Bulletin officiel du Ministère de la justice.]

Walgrave, L. (2000). How pure can a maximalist approach to restorative justice remain? Or can a purist model of restorative justice become maximalist? Contemporary Justice Review 3(4):415–432.