Restorative Justice is Not the Privatisation of Justice
This article is the English translation of the original Spanish version ("Justicia restaurativa no es privatización de la justicia") published in Diario de Noticias de Navarra.
The article is by: Eduardo Santos Itoiz, Counselor for Immigration Policies and Justice of the Government of Navarra; Rafael Sainz de las Rozas Bedialauneta, General Director of Justice of the Government of Navarra; and EFRJ members: Jorge Ollero Perán, Director of the Service for Criminal Enforcement and Restorative Justice of the Government of Navarra; and Roberto Moreno Álvarez.
Since being screened at the San Sebastian Festival, the film Maixabel by Icíar Bollaín has been producing great interest and sparking many reactions of a very diverse nature.
On a cinematographic level, the film is being acclaimed as a great piece of artwork. However, beyond its artistic value, opinions about the true story it describes have been strongly polarised and, in some cases, openly against the restorative encounters that took place in the Basque Country. When this polarisation and criticism come because of a lack of awareness, providing more information can be positive. For this reason, we intend to clarify here some concepts related to restorative justice.
Firstly, and contrary to what has been affirmed by some writers, restorative justice does not mean privatisation of justice. As established by current legislation, this approach to justice is based on the active participation of the people affected by the crime. This process aims to promote the repair of the harm caused and the accountability and reintegration of those who have caused it. As stated in the EU Victims Rights Directive 29/2012, "the crime constitutes an injustice against society and a violation of the individual rights of the victims" (Recital 9). The protection of both values (collective and individual) must always be guaranteed. Restorative justice practices promote the reparation that the victim needs within the purpose of prevention and can contribute to adapting the proportionality of the criminal system response for those offenders that are aiming at being involved in a restorative process. Within the framework of the constructivist theories of punishment, restorative justice can be understood as part of the communicative dimension of legal systems. According to these theories, society has a voice in the enforcement of sentences and punishments and could validate the rules that bind us all. Thus, through restorative justice, society can play a part in validating the norms resulting from a deliberative process in which the responsibility of the offenders has been effectively mobilised and the needs of the victims have been heard.
In regards to terrorist crimes, the protection of collective values requires the political motivations and consequences of these crimes to be addressed through restorative processes: that is precisely what has been implemented in the case of the restorative encounters with ETA terrorists that took place in the Basque Country which Bollaín's film narrates. It is important to remember that these meetings took place as an initiative of the Basque and Spanish State public institutions that were democratically authorised to do so at that time. In other words, the meetings had both the political and collective extent that public initiatives require. In these restorative meetings, victims participated voluntarily and decided how they needed to restore the harm that had been caused to them. In that sense, there was undoubtedly a healing aspect to the encounters. Regardless, these were meetings initiated by public institutions, with an undoubtedly public intention: to heal the wounds of our community and to advance towards peace. This collective and political dimension can also be found in other restorative processes in the Basque Country (with victims of the GAL), as well as in cases of jihadist terrorism and political violence such as those in Northern Ireland or Italy (Red Brigades).
Secondly, some of the opinions published since the premiere of the film emphasise some skepticisms towards the aspect of forgiveness of some restorative justice processes. They stress the impossibility of forgiving someone who murders a person or terrorises a society and highlights the Christian character of redemption that underlies the concept of forgiveness. In this sense, we should point out that forgiveness is not the specific objective of restorative justice. Restorative justice seeks to repair the harm caused (any kind of harm) and forgiveness is only one possible way of doing so. The collective dimension of the harm is addressed by the public policies that guarantee the victim's recognition and respect, as well as by the institutional declarations that condemn the unfair harm that has been caused. These public policies are enhanced when they work from a restorative perspective.
It is important to understand that participating in a restorative justice process does not mean avoiding a criminal response, but it is rather a way of involving citizens in the articulation of an appropriate response to the crime. This response must be imposed by a Court or Tribunal, taking into account the public interests that the Public Prosecutor must represent, and respecting all the guarantees offered by the democratic criminal process. Restorative justice aims at promoting the reparation of the victim and the accountability of the offender through a participatory process that can include other members of the community, always with the guarantees and endorsements of public institutions.
Restorative justice does not, therefore, mean privatisation of justice but a deepening of its collective, authentically political dimension. And it is precisely this aspect, that makes it a particularly valuable instrument to delegitimise terrorism.
Terrorism crime offenders have often the delusional idea of having exercised violence in the name of the people. Restorative justice puts the terrorist in front of these same people, the community, that will make the offender understand that their violence was meaningless and that they have committed a mistake. In doing so, restorative justice sends future generations the message that it does not accept guardianship from any armed group, nor any law other than the one that has been decided democratically.
Because of this alone, initiatives like the one of Maixabel Lasa should deserve, beyond ideologies and partisanship, the recognition of our entire society
The header image is a still from the film. Both that image and poster are credited to Film Factory Entertainment.
This English translation is published on the European Day of Remembrance of Victims of Terrorism, 11 March 2022.
Translated by Júlia Barjau Dachs.
Read more about restorative justice in cases of violent extremism.