From Venice to Pamplona

Recommendation CM/Rec(2018)8 of the Council of Europe’s Committee of Ministers concerning restorative justice in criminal matters was an important milestone for the development of restorative justice across Europe. It was followed by the Venice Declaration on the Role of Restorative Justice in Criminal Matters of December 2021 which encouraged the implementation of the principles of the Recommendation.

Although none of these legal instruments are mandatory, they have produced great influence in the field. One example of this influence is the Navarrese Law on Restorative Justice (Law 4/2023 on restorative justice, mediation, and community restorative practices), the first regulation of this kind in Spain.

In this article, I will describe the main features of this law, especially stressing its relationship with the principles set up in European Law, and comment on some debates that may be interesting for scholars, practitioners, or policy makers.

The article is divided into three parts and a conclusion. In the first part, I will contend that European soft law was influential in the development of the Navarrese Law on Restorative Justice. Secondly, I will present an explanation of the regulatory spaces that should be taken into account when legislating about restorative justice.  In the third section, I will describe the content of the Navarrese Law on Restorative Justice, focusing on 1) the definition and principles it sets for restorative justice; 2) the mechanisms it establishes to create a right of access to high-quality restorative justice services; and 3) some innovative features it creates. Finally, a brief conclusion will offer some ideas for discussion.

Recommendation CM/Rec(2018)8 of the Council of Europe’s Committee of Ministers concerning restorative justice in criminal matters was an important milestone for the development of restorative justice across Europe. It was followed by the Venice Declaration on the Role of Restorative Justice in Criminal Matters of December 2021 which encouraged the implementation of the principles of the Recommendation.

Although none of these legal instruments are mandatory, they have produced great influence in the field. One example of this influence is the Navarrese Law on Restorative Justice (Law 4/2023 on restorative justice, mediation, and community restorative practices), the first regulation of this kind in Spain.

In this article, I will describe the main features of this law, especially stressing its relationship with the principles set up in European Law, and comment on some debates that may be interesting for scholars, practitioners, or policy makers.

It may be thought that so-called ‘soft law’ does not produce changes in reality, as it does not bind States to implement those rules. The truth is that it often does not produce many transformations, as one may deduct, for example, looking at the reality of European prisons despite the numerous recommendations of the Council of Europe[1].

However, on some occasions, Council of Europe Recommendations can be a good lever for a government that wants to make changes, by giving legitimacy to its legislative proposals and offering a guide so that its content is founded on a highly respected institution that bases its rules on international scientific standards.

This is exactly what happened in the case of Navarra. The 2018 Recommendation and the 2021 Venice Declaration provided very important support for this regional administration that wished to consolidate its policies to promote restorative justice in a state context that was not entirely favourable.

As we will later develop, Spain is a decentralised state in which autonomous communities, such as Navarra, enjoy broad regulatory powers. However, the powers over the regulation of criminal proceedings are exclusive to the central State.

Navarra is a prosperous northern region of about 600,000 inhabitants with a strong identity and a long history of self-government. Since 2006, the Government of Navarra has been funding restorative justice services, first as an innovative pilot project and, since 2018, as a public service. These services worked relatively well despite the absence of specific regulations and were based on voluntary coordination protocols with judges. Only some judges made referrals to the services mostly for minor crimes. In this context, the Government of Navarra wanted to strengthen the legitimacy of the service and reinforce the quality standards under which it acted, so that an expansion of the service would happen.

In this context, certain rules of Recommendation 2018 (8) brought highly legitimised and respected support for legislating in favour of promoting restorative justice policies, making it easier for the Parliament to finally adopt a law.

Specifically, the following articles constituted a basis for the drafting of the Navarrese law on restorative justice:

• Restorative justice should be a generally available service (article 18).
• Standards of competence and ethical rules, and procedures for the selection, training, support and assessment of facilitators, should be developed (article 36).
• Restorative justice services and restorative justice training providers should be overseen by a competent authority (article 37).
• Restorative justice requires adequate human and financial resources to be effectively provided (article 54).

The Venice Declaration, for its part, contributed to strengthening these premises by stipulating that:

“A right to access to appropriate restorative justice services for all the interested parties, if they freely consent, should be a goal of the national authorities”

These principles and ideas constituted the foundations on which the Government of Navarra was able to build a law, which was later approved by the Navarrese Parliament with a large majority. On this occasion, the non-binding regulation of the Council of Europe served to transform the legislative landscape and the factual reality of this community in northern Spain.

Before describing the content of the law, I want to share a brief analysis of the regulatory spaces that must be taken into account when legislating on restorative justice, since I consider that it is a topic that is not well known or reflected on, and which generates certain misunderstandings among lawyers.

As I said previously, Spain is a decentralised State in which the central Government has exclusive powers on criminal legislation. In this regard, it is an obstacle to the development of restorative justice for which there is little regulation in the Criminal Code or Criminal Procedure Code. Only the Victims Statute of 2015 (a transposition of the Victims Directive of 2012) considers restorative justice as a service that can be offered to victims of crimes who request it. However, there are no legal references to whether this service should be generally available, or about what would be the interactions that restorative justice may have on the outcome of the criminal trial.

In this regard, the possibilities for regulation of restorative justice in Navarra were limited, as the region could not legislate the relation of restorative justice to the criminal process. Nevertheless, I will contend that there is much left to regulate. I think that it is very important to distinguish three regulatory spaces that affect restorative processes and to understand that only one of them is properly and genuinely restorative.

I believe that the three regulatory spaces are: the substantive criminal space; the procedural criminal space; and the restorative space itself.[2]

The substantive penal space should be composed of answers to questions such as: “What are the defining elements of the crime?”; “What legal consequences should be imposed on those who commit such behaviours?”; or “What causes of justification, exculpation, mitigation or aggravation of responsibility exist?”, among others.

In short, the substantive criminal space contains what is most commonly known as objective criminal law, normally regulated in the Criminal Code.

On its side, the procedural criminal space is interested in questions such as: “Which legal operator should be in charge of investigating the crime?”; “Under what conditions can a diversion or probation be decided?”; “Which judge should sentence the crime?”; or “Under what conditions can the investigated person accept his guilt and what consequences does that have for the sentence?”, among others.

In short, this space contains what is commonly studied under the heading of Criminal Procedure Law, normally regulated in the Criminal Procedure Code or similar.

All of this is well-known and obvious to any law student. What is not so well known is that legislating on restorative justice does not always imply having to legislate in these two regulatory spaces. In my opinion, there is a third regulatory space, which is properly restorative, and which has relative autonomy with respect to the previous spaces. That does not mean that the three spaces should be absolutely disconnected. In fact, there are shared areas between the spaces, and it would be desirable for the shared spaces to be expanded.

The visual scheme of this idea would be that of a Venn diagram:

A criminal lawyer or an expert on procedural law would say, “If you cannot regulate crimes or punishments nor the criminal process, what are you going to regulate? Is there anything else?”

The answer is “Yes, you can regulate restorative justice”. The third regulatory space should answer this main question: “What happens when a case enters a restorative justice service?”.

In this regard, these and many other questions concern this space:

• Is there a universal right to access?
• Who does the restorative intervention?
• What training should they have?
• Who pays for the intervention?
• What is part of the intervention and what is not?
• Who controls the quality of the intervention?

And so on.

In short, it is about regulating a specific service, named “restorative justice” that functions under some principles (what I may call, an ethos) and under some rules of practice (a certain praxis).

It must be clear, and not always is the case, that there is a difference between the criminal-procedural and criminal-substantive effects of restorative justice and restorative justice itself. In this sense, I cannot agree with those visions that define restorative justice upon its consequences in the criminal procedure (diversion, probation) or that express that its essence is related to the exercise of the State powers on imposing punishment (ius puniendi). Restorative justice must be defined in its own terms, and, in this sense, the ethos and praxis of restorative justice must be independently defined[3].

As I explained, in Spain, the central state legislates criminal law (substantive and procedural), while the Navarrese regional Government can ‘only’ provide the administrative, financial and human resources to the Justice Administration. Therefore, there is a clear divergence between those who establish how criminal justice should work and those who manage services inside criminal justice.

This divergence is one of the main causes, in my opinion, of the unequal access to restorative justice services in Spain because only those regional governments who have strong political and social incentives have created restorative justice services, while the central government has scarcely developed any legislation on it.

In this complex context, the Navarrese Law on Restorative Justice was a first step in ‘normalising’ restorative justice, by making it as legitimate as any other public policy. This, luckily, may influence other regions, the central Spanish Government or even other European regions or countries.

As promised, in the next part of the article I will describe the content of the law[3].

I would contend that the main interesting points of this law are: 1) the definition and principles it sets for restorative justice; 2) the mechanisms it establishes to create a right of access to high-quality restorative justice services; and 3) some innovative features it creates.

Definition and principles

The Navarrese Law 4/2023, of March 9th, on Restorative Justice, Mediation and Community Restorative Practices, defines the Restorative Justice Service of Navarra as:

 “a specialised public support service for victims aimed at achieving reparation for the damage caused responsibility and reintegration for offenders and the participation of people and communities affected by crimes”.

As one may note, this definition broadens the definition contained in Recommendation 8 (2018) and the 2012 Victims Rights Directive. While these rules offer a ‘process-oriented’ definition[5], this law focuses on the results that should be obtained from this process. The reason for this logic is that the official definition of restorative justice (contained in the Victims Rights Directive) falls short of describing what is supposed to happen in a restorative process. I believe that, in this stage of development, a more ‘principled’ definition may help the public understand the aims of the service. Therefore, the definition of the Navarrese Law on Restorative Justice complements, qualifies, and expands on the official definition.

Combining the Directive’s process-oriented definition with the Navarrese’s result-oriented one, an interesting (but way too long) definition will follow:

Restorative justice refers to any process, aimed at achieving reparation for the damage caused, responsibility and reintegration for offenders and the participation of people and communities affected by crimes, whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of an impartial third party.

As can be seen, it was sensible to include only the newly changed part of the definition.

In addition to the definition, this law establishes specific principles that must govern the operation of the restorative service. These principles are:

• Participation: the active and direct participation of affected people and communities should be facilitated;
• Reparation: the damage caused to individuals, communities and society in general must be addressed and attempted to be repaired;
• Responsibility: the people who have generated the damage should be encouraged to take active responsibility for its repair;
• Reintegration: the processes must promote the reinsertion of offenders, taking into account the personal and social factors that are at the root of unjust harmful behaviours. Failure to complete the process may not have negative consequences for the participants;
• Protection of victims: the processes must guarantee the safety of the victims, avoiding secondary victimisation, so that there is no danger that their development could cause new material or moral damages;

-       Equity: processes must be applied that respect the rights and needs of the parties involved, avoiding domination or imbalance of power, with special attention to equality between men and women; and

-       Social and community approach: the processes will be aimed at promoting a culture of peace in the affected community and society in general, trying to foster the conditions that prevent harmful behaviours from being repeated.

These principles correspond to a broad and balanced vision of restorative justice, which seeks to improve the performance of justice towards victims and perpetrators from a social and community perspective. This vision corresponds to what is advocated by much of the current scientific literature after overcoming visions focused solely on the offender or the victim[6]. In this sense, these principles are similarly included in articles 13 and 14 of the 2018(8) Recommendation.

This first part of the law aims to establish what I call the ethos of the restorative justice service. 

Mechanisms to create a right of access to high-quality restorative justice services

As noticed before, the Venice Declaration of 2021 considers that a “right to access to appropriate restorative justice services for all the interested parties, if they freely consent, should be a goal of the national authorities”. This goal needs clear and strong legal mechanisms to become a reality.

Keeping this in mind, article 13 of the Navarrese Law on Restorative Justice opens the door for all the victims in every stage of the criminal process, in crimes of any type and seriousness to enter the restorative space.

In addition, in order to ensure high-quality restorative justice services for everyone, the law establishes certain measures:

1. Public access and gratuity: The Government of Navarra will guarantee the public and free provision of the Restorative Justice Service of Navarra; thus, it will become a public service, a right for every victim and offender in Navarra.

2. Quality supervision: The Restorative Justice Service of Navarra will maintain a quality evaluation system through satisfaction surveys. External supervision and evaluation of the services will be carried out. A biennial Quality Plan will be established.

3. Training: Restorative justice facilitators will have specialised training on restorative justice, which should provide them with a high level of competence and skills to address conflicts from a restorative perspective, as well as knowledge of the specific requirements for working with vulnerable people, victims and offenders, knowledge about the criminal justice system and training in equality between men and women.

4. Data register for statistical aims: The Restorative Justice Service of Navarra will have adequate data recording systems that allow it to collect information on the cases it addresses, always considering data protection regulations. At a minimum, the restorative justice technique applied, and the outcome of the process should be recorded.

These mechanisms, which are also strongly inspired by Recommendation 2018(8), are ways to ensure that a high-quality praxis is developed. 

Innovative aspects of the law

Being the first Spanish law on restorative justice is an important innovation itself. This law has contributed to raising awareness and increasing the legitimacy of this transformative paradigm of justice. Moreover, the law has included three important innovations that expand the scope of the application of restorative justice.

Firstly, it includes a definition of the main techniques that can be used to implement restorative justice. Article 20 states that “the Restorative Justice Service of Navarra may use any technique or methodology that respects the definition and principles contained in state legislation and in this regional law. The main restorative techniques facilitated by the Restorative Justice Service of Navarra will be penal mediation, restorative conferences, restorative circles, and restorative workshops”. A brief definition of these techniques is offered, helping to distinguish restorative justice as a service from the tools this service may use. In addition, restorative workshops are defined to include programs such as prison restorative dialogues and support and reinsertion circles.

Secondly, the Navarrese Government not only offers restorative justice to victims of crime, as they are defined by criminal legislation. It also considers victims of prescribed crimes or victims of crimes without a known author. As article 13 points out, “In cases of extinction or non-accreditation of criminal responsibility, the Restorative Justice Service of Navarra may carry out processes aimed at the victims obtaining adequate moral reparation”. This article widens the definition of victims so that the sexual abuse cases made in the context of the Catholic Church are covered. Navarra is the first Spanish region to offer restorative justice services to these victims[7].

Thirdly, the law includes a chapter on restorative practices outside of the criminal law system. They are defined as “tools for the prevention and resolution of non-judicial conflicts, as well as the promotion of social cohesion, which seek to generate collective conditions of trust, respect and care so that conflicts that may arise are managed in their initial stages spontaneously by the community”. According to article 46, community restorative practices should follow the principles of citizen participation, prevention and resolution of social conflicts and increase in social cohesion. In this sense, practices will seek to strengthen the sense of shared responsibility and belonging to the civic community, from a positive perspective on diversity and interculturality.

As far as I know, it is the first time in Europe, and maybe in the world, that restorative practices are included in a law. The main rationale behind this approach is that the justice system should be the ultima ratio on the scale of social control and that community-based approaches are best in preventing the escalation of conflicts.

A full-fledged transformation of the way we deal with societal conflicts is still far away, but this law is a first step in that direction.

While in Spain there is still a long way to go in defining the penal and procedural consequences of restorative justice (which is the responsibility of the central state), regional and local administrations can create and regulate their own restorative justice services without having to wait for the State. Creating restorative justice services is not a matter of defining what consequences restorative justice has in the criminal process (which is still very important). Rather, it consists of designing an organisation, made up of human and material resources, and providing it with principles of action (ethos) and a way of acting (praxis).

In this design, it is very important to take into account what the respected Council of Europe says. It is also important to provide budgetary resources, taking into account that most scientific literature says restorative justice is more efficient and less costly than traditional criminal justice, while also giving more satisfaction to victims and encouraging offenders to desist on crime.

This is why it should be an unavoidable public policy for the reform of justice in the 21st century.

Now that we are living in times of risk of collapse of the justice system, of citizen distrust from institutions and of strong polarisation, restorative justice brings an ethos and a praxis in the right direction, in the direction towards social cohesion, respectful co-existence and the improvement of public services.

As I have tried to show in this article, a restorative road goes from Venice to Pamplona. This road has the potential to open new ways for a restorative journey that still has a long way to go.

We should be optimistic and courageous in making this journey because, as Spanish poet Antonio Machado put it:

Traveller, there is no road
you make your own path as you walk.

Jorge Ollero Perán is the Director of the Restorative Justice Service of the Government of Navarra and a Board Member of the European Forum for Restorative Justice.

The original of this article was written for: 

Ollero Perán, Jorge (2024): From Venice to Pamplona: How European Soft Law Can Influence The Development of Restorative Justice. In: TOA-Servicebüro des DBH-Fachverband e.V. (Edit.): Miteinander in Verbindung treten: Gemeinsam für Menschlichkeit, Gerechtigkeit und sozialen Frieden. Tagungsdokumentation des 18. Forums für Täter-Opfer-Ausgleich und Restorative Justice. Köln: DBH-Fachverband e.V. [Publication expected in December 2024]

[1] See the contrast between the Recommendation (2006)2 of the Committee of Ministers to member states on the European Prison Rules and the report Criminal detention conditions in the European Union: rules and reality of the European Union Agency for Fundamental Rights (2019).

[2] It is possible to regulate restorative justice with complete independence from the criminal process. However, in this article I raise a specific question: what is the concrete content of the regulation of restorative justice in relation with the criminal justice process. 

[3] A good example of trying to define Restorative Justice on its own terms could be found in Restorative Justice. A new starting point. A new arrival point. Calvo Soler, Raúl. Revista de Victimología, Nº. 15, 2023 (in Spanish).

[4] A first analysis of the law can be found in El desarrollo de la justicia restaurativa en España y su prohibición en casos de violencia sexual y de género: Reflexiones a partir de la LO 10/2022 y la nueva Ley Foral 4/2023 de Navarra. Romero Seseña, Pablo. Revista de Derecho Penal y Criminología, Nº. 30, 2023. (In Spanish). Some of the main ideas of the law can be found in this interview, in English, to the Navarrese Minister of Justice, Eduardo Santos: https://www.euforumrj.org/en/interview-Eduardo-Santos.

[5] The Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, states in article 2: ‘restorative justice’ means any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of an impartial third party.

[6] The European Forum for Restorative Justice clearly supports a broad and balanced vision of restorative justice. See, for instance, Connecting People to Restore Just Relations: Practice Guide on Values and Standards for restorative justice practices (EFRJ, 2018).

[7] This is guaranteed by another innovative law, the Navarrese Law 24/2022, of July 5, on the recognition of victims of sexual abuse committed within the Catholic Church of Navarre.