There restorative justice constitutes one of the major novelties of Legislative Decree 150 of 2022, it is not yet in force because the entry into force of this part of the decree has been postponed by 6 months and, therefore, will be in force from 30 June 2023.
Given the importance of the topic and the imminent deadline, I thought I would talk about it at a very important event organized by theAMI, Association of Italian Matrimonial Lawyers, chaired by Attorney Gian Ettore Gassani, which will be held in Rome, at the Hotel Cicerone, next Friday 28 April.
This is a highly anticipated conference because it will address the issue of the Cartabia Reform in both civil and criminal law.
Title IV of Legislative Decree 150/22, which is composed of 26 articles, from 42 to 67, is integrated with some provisions modifying the Code of Criminal Procedure and the Penal Code.
In the meantime, let's try to understand what is meant by restorative justice.
This is a plan which allows the victim, the person indicated as the perpetrator of the offence and other members of the community to participate freely, in a way consensual, active And voluntary, to resolve issues arising from the crime, with the help of an impartial, appropriately trained third party, called mediator.
But why this reform?
First of all, to provide an “organic” discipline suitable for providing an overall picture and grouping together some limited and episodic initiatives that have developed in a patchy way in Italy. I am referring, in particular, to juvenile justice in which restorative justice experiences have been carried out and, more importantly, to implement European law that provides for the establishment of such services.
There are many sources, the point of reference of the discipline and, some, such as Directive number 29 of 2012, bind us in the sense that they constitute, even if only as final rules, the framework within which our legislation is placed.
This directive had been implemented only in part by Legislative Decree 15/12/2015 n. 212, so much so that the European Union Commission had opened a formal infringement procedure against Italy for its failure to correctly transpose it, also due to the lack of an organic discipline of restorative justice.
The problem that arises is the constitutionality of the institution in its applicability to people who have not been definitively sentenced, in relation to the presumption of innocence.
The Constitutional Court will certainly be called upon to rule on this matter.
However, I recall that the Constitutional Court has deemed the institution of suspension of proceedings with probation not to be in conflict with the presumption of innocence. It has in fact noted that probation is based on the will of the accused, referred not only to the request but also to the execution of the treatment program, which is not a criminal sanction that can be enforced by force.
Restorative justice is also based on the consent of the participants, which must be free, conscious, informed and expressed in written form and can always be revoked even for conclusive facts.
It is important to clarify immediately that this justice it is alongside traditional justice and does not intend to replace it in any way, therefore, it is not an alternative, nor is it subsidiary to it, but it is complementary.
As a basic idea, restorative justice responds to a different logic from the punitive one, which precisely wants to inflict a punishment for the crime because its purpose is not to punish the offending subject but to remedy the consequences that the crime has on all the people involved, therefore, both on the offending subject responsible for the offence (we speak of offence because the crime could also not exist for example for reasons of absence of the subjective element, of cause of non-punishability or of extinctive causes etc.) and on the offended person and on the community itself and the relatives of those who suffer the consequences of the act committed.
In any case, the offense is a bit of a prerequisite, the pillar on which every restorative justice program is based.
Article 42 defines as victim of crime the natural person who has directly suffered any pecuniary or non-pecuniary damage from the crime, as well as the family member of the natural person whose death was caused by the crime and who has suffered damage as a consequence of the death of that person.
THE'author of the offense is identified as: 1) the person indicated as such by the victim, even before the complaint is filed; 2) the person under investigation; 3) the accused; 4) the person subjected to a personal security measure; 5) the person sentenced with an irrevocable sentence; 6) the person against whom a judgment of no case to answer or of no need to proceed has been issued, due to the lack of the condition of admissibility, also pursuant to article 344-bis of the code of criminal procedure, or due to the intervening cause extinguishing the crime;
Article 42, letter d) also provides the definition of family: the spouse, the party to a civil union pursuant to Article 1, paragraph 2, of Law No. 76 of 20 May 2016, the de facto cohabitant pursuant to Article 1, paragraph 36 of the same law, the person who is linked to the victim or to the person indicated as the perpetrator of the offence by a stable emotional bond, as well as relatives in a direct line, brothers, sisters and persons fiscally dependent on the victim or the person indicated as the perpetrator of the offence.
Well, all the subjects involved have the opportunity to participate in the program in order to find a remedy for the consequences that the offense has had on them.
The aim of the program is, therefore, to reach an agreement aimed at repairing the offence and suitable to represent the mutual recognition (therefore, recognition of the victim of the crime and accountability of the person indicated as the author of the offence) and the possibility of rebuilding the relationship between the participants.
Please note that the repair outcome may also be only symbolic (agreements regarding the attendance of places or people, formal apologies, behavioral commitments) or material (compensation for damages, restitutions, efforts to eliminate or mitigate the harmful or dangerous consequences of the crime or to prevent the crime from leading to further consequences).
The consent of the participants must be "personal, free, aware, informed and expressed in written form". Furthermore, it "is always revocable even for conclusive facts".
The participation of the people involved takes place with the help of a mediator, third, impartial, adequately trained, the law says. In reality, to be precise, for each restorative justice program there are two mediators, precisely because it is necessary to take into account the interests that initially start out in conflict between the perpetrator of the offense and the victim of the same offense.
The characteristic of each program is the dialogue, the meeting of these people.
At this point we realize that when we talk about restorative justice we are not dealing with a jurisdictional procedure but with a public service, moreover free, so much so that both the judges and the defense attorneys are not involved in the development of this program.
These figures, fundamental in the criminal process, enter into restorative justice at the beginning, for the decision whether to start it or not, and only upon request of the interested parties, and they also participate at the end of the program when the defense attorneys are present to define the agreements relating to the possible restorative outcome and the Judge is responsible for evaluating the outcome.
As mentioned, it is a complementary program, but it is not a complementarity in malam partem, that is, to the detriment of the accused, because participation in the program cannot produce any negative effects to his detriment.
Article 58, which is fundamental to this institution, provides that "In any case, failure to carry out the program, its interruption or failure to achieve a remedial outcome do not produce unfavorable effects on the person indicated as the author of the offense".
“In any case”, also means when the failure to carry out the program is attributable to the person indicated as the perpetrator of the offense, who did not deem it appropriate to follow the order of the judicial authority that “sent” him to the restorative justice center to start a program.
Therefore, there is freedom of the parties even during the process.
Those who initially accepted are not forced to continue, there is always freedom of choice and therefore the complementarity is only in bonam partem in favor of the accused.
There are objective barriers between the restorative justice service and the criminal process because the mediator and the parties have the duty of confidentiality, there is the unusability of the declarations and information released in this program.
Article 50 of the legislative decree, under the heading of the duty of confidentiality, prescribes:
Mediators and staff of the Restorative Justice Centers are required to maintain confidentiality regarding the activities and actions performed, the statements made by participants and the information acquired as a result of or during the restorative justice programs. unless there is the consent of the participants to the disclosure, that the mediator deems this absolutely necessary to avoid the commission of imminent or serious crimes or that the declarations constitute a crime in themselves.
Participants are required not to disclose statements made and information acquired during the restorative justice program prior to its conclusion and the finalization of the criminal proceedings with an irrevocable sentence or criminal decree.
After the conclusion of the restorative justice program and the definition of the criminal proceedings with an irrevocable sentence or criminal decree, the publication of the statements and information acquired is permitted with the consent of the interested party and in compliance with the regulations on the protection of personal data.
In establishing this Institute, the Legislator has tried not to cause a delay or slowing down of the processes, because, as mentioned, the path is separate and parallel to that of punitive justice.
The only case in which the Judge, following the issuance of the notice referred to in Article 415 bisc.pp, can order, upon request of the accused, the suspension of the proceedings for a maximum of 180 days occurs in the case of a crime prosecutable upon complaint subject to remission.
In all other cases, restorative justice is carried out alongside the criminal trial without any possibility of slowing it down or affecting its timing. And this seems obvious to me, otherwise the trials would be prolonged beyond measure and there could be an instrumental use.
What are the positive effects?
First of all the tacit remission of the complaint is provided for when the complainant has participated in a restorative justice program that concluded with a restorative outcome; however, when the restorative outcome involves the assumption of behavioral commitments by the defendant, the complaint is considered remitted only when the commitments have been respected”.
Then there was the introduction in art. 62, co. 1, n. 6), cp of the provision according to which it is included among the common mitigating circumstances Also "having participated in a restorative justice program with the victim of the crime, concluded with a repair outcome. If the remedial outcome involves the defendant taking on behavioural commitments, the circumstance is assessed Alone when commitments have been fulfilled."
It is necessary that this behavioral commitment be fulfilled, it is not enough that it has been assumed, therefore a guarantee of the norm to ensure that it is effective and not just words written on a sheet of paper.
Another positive effect is that successful participation can be assessed in determining the severity of the sentence, adding to the criteria set out in art. 133 of the Criminal Code;
Finally, a conditional suspension of the sentence for a period not exceeding one year is permitted if the reparative outcome occurs when the first-instance sentence has not yet been pronounced (amendment of paragraph 4 of art. 163 of the criminal code).
The problem that arises is that these effects in favor of the accused can intervene at certain particular moments of the trial.
It may happen that the restorative outcome is achieved at a time when the application of the mitigating circumstance of art. 62 n. 6 cp is procedurally precluded or the sentence imposed in the trial on the merits can no longer be modified or the conditional suspension of the sentence can no longer be ordered.
This could happen because one of the general principles provided for restorative justice is the “guarantee of the time necessary for the execution of each program” which would mean that the mediators will have sufficient and adequate time to complete their task. They need to have time available to reach a positive outcome and it is clear why: it starts from the opposition between the one who suffered the offense and the one who caused it. It is clear that only time can allow these two initially opposed positions to come closer together.
The more or less long duration of the criminal process may result in the extinction of the crime subject to the remission of the complaint or, for other crimes, the extent of the penalty applied or even the suspension of its execution (if the penalty imposed is within one year).
In all these cases, the late arrival of the restorative outcome has effects limited to the execution phase of the sentence, as specified by the new art. 15-bis of the penitentiary system (introduced by art. 78 of Legislative Decree no. 150/2022).
Doubts of constitutionality may arise from the time limits placed on the evaluation in the criminal trial of the favorable outcome of restorative justice programs.
There are also executive effects and, therefore, the possibility of enjoying penitentiary benefits if the reparative outcome comes after the judgment, however, it is clear that such benefits will not affect the sentence.
So the question arises: if the restorative outcome is reached at a time when these benefits on the sentence can no longer be achieved, will it be enough for the defendant, now convicted, to benefit from the advantages that the restorative outcome guarantees him?
Won't this also raise a constitutional issue?
There could be a disparity in punitive treatment between the various defendants not attributable to them and due to accidental and external factors. Some proceedings in some parts of the country are faster, the workload of each Prosecutor's Office is different, etc.
It will probably be necessary to arrive at an interpretative solution that takes into account this inconvenience that the long times of Restorative Justice can entail as unequal treatment between the various defendants in relation to the benefits that can be achieved from a program that has had a positive restorative outcome recognized as such.
This is one of the problems that this legislation poses, but it is clear that every new institution creates controversy. This happened when plea bargaining was introduced, the agreement on the amount of the sentence, as well as in the most recent hypothesis of suspension of the trial with probation that went to the Constitutional Court several times with a request for unconstitutionality and the Constitutional Court did well to reject them all also because today it is the most applied special procedure compared to the other traditional ones of the criminal procedure code.
Access to restorative justice programs presupposes that the defendant has “recognized the essential facts of the case,” as required by art. 12, letter c), of the aforementioned European directive of 2012.
This prerequisite is not expressly provided for in Legislative Decree no. 150/2022, but its incorporation into internal legislation appears necessary because the aforementioned art. 12 includes it among the minimum conditions of the restorative justice procedure.
The “essential facts of the case” must be recognized by this subject, because restorative justice consists in the attempt to “resolve the issues arising” from that case, which is therefore the starting point for accessing the relevant program.
But it is not a given that the offense that occurred entails the existence of the crime, which could be excluded due to the existence of a cause of justification or non-punishability or an extinguishing cause. Therefore, the recognition of "the essential facts of the case", by the person indicated as the author of the offense, does not imply an admission of criminal liability, both because the offense is not yet a crime, and because it is a mere "indication", a lexical choice that was motivated by the "duty of respect for the presumption of innocence".
For which crimes can you access the program? For all types of crimes, regardless of their severity.
Who runs the restorative justice program?
The program is curated by the CD Center for Restorative Justice, a public structure established within local authorities, which has the task of organizing, managing, delivering and supervising the implementation of justice programs restorative.
Within each Court of Appeal district, the Local conference for restorative justice (in which the representatives of the Ministry of Justice, the Municipalities, Provinces and Metropolitan Cities present in the district participate). The Conference, having heard the President of the Court of Appeal, the Attorney General at the Court of Appeal, the President of the Council of the Bar Association, having also heard the expert members of the National Conference for Restorative Justice, identify, by memorandum of understanding, one or more local authorities to whom the establishment and management of the Restorative Justice Centres will be entrusted.
Within 6 months of the entry into force of Legislative Decree 150/2022, the Local Conference shall carry out a survey of restorative justice services provided by specialized public or private entities contracted with the Ministry of Justice.
When can I access the program?
At every stage and level of criminal proceedings, even before the filing of the complaint and up to the enforcement phase of the sentence and the security measure, after their enforcement and following a ruling of no case to answer or of no need to proceed, due to the lack of the admissibility condition, also pursuant to art. 344 bis cpp or due to the intervening cause extinguishing the crime.
How do I access the program?
At every stage and level of the proceedings, the Judge can arrange thesending of the accused and the victim of the crime Reference Restorative Justice Center For the launch of a restorative justice program with order (during the preliminary investigations the public prosecutor provides with a reasoned decree):
1) ex officio
2) at the request of the accused
3) at the request of the victim
in any case before sending it, it must hear the parties and the defendersThe victim must be heard only if the Judge deems it necessary.
The Judge orders the referral if two requirements are met:
- to) that the implementation of a restorative justice program can beuseful for resolving issues arising from the fact which we proceed with;
- b) does not pose a concrete danger to the interested parties or to the ascertainment of the facts.
At the end of the program: the Judge acquires the report transmitted by the mediator, which contains the Description of the activities carried out And the remedial outcome achieved. The mediator communicate to the judicial authority proceeding failure to implement the program, the'interruption of the same or the failure to achieve a remedial outcome.
The mediator
Due to the sensitivity of the role played by the professional, it requires multidisciplinary and transversal skills, suitable to guarantee the listening of the paths of the participants and the re-elaboration of traumatic events and behaviors that, integrating the social disvalue typical of the crime, could be, are or have been the object of jurisdictional investigation.
Mediation, as I often say, is an art.
Being able to help the parties reach a conciliatory agreement, helping them to discover the deep reasons for their behavior and to free themselves from the destructive dynamics that push them to attack the other and harm themselves means preventing any future conflicts.
To this end, the legislator has regulated the methods of theoretical and practical training, aimed at ensuring the achievement of the well-being of people in suffering, achievable through university courses and above all through concrete experiences, which can be tested in the Restorative Justice Centers.
Transitional provisions on restorative justice
In order to ensure the finding of mediators pending the implementation of restorative justice, the transitional provisions provide for: – in art. 93 Inclusion in the list of mediators
- Those who, on the date of entry into force of this decree, possess at least one of the following requirements are included in the list referred to in Article 60: a) have completed training in restorative justice and have at least five years of experience, including on a voluntary and unpaid basis, acquired in the previous decade at specialized entities that provide restorative justice services, whether public or private, affiliated with the Ministry of Justice or operating under memoranda of understanding with judicial offices or other public bodies; b) have completed theoretical and practical training, followed by an internship, in the field of restorative justice in criminal matters, equivalent to or superior to that provided for in this decree; c) provide service at juvenile justice services or external penal enforcement offices, have completed adequate training in restorative justice and have at least five years of adequate experience acquired in the field in the previous decade.
- Inclusion in the list, pursuant to paragraph 1, is arranged following the presentation, by the interested party, of suitable documentation proving possession of the requirements and, in the case referred to in letter b), following passing a practical evaluation test, the financial cost of which is borne by the participants, as per subsequent regulation by means of a decree of the Minister of Justice, in agreement with the Minister of University and Research.
- The same decree referred to in paragraph 2 also establishes the procedures for carrying out and evaluating the test referred to in paragraph 2, as well as for inclusion in the list referred to in paragraphs 1 and 2.
Finally, I would like to point out that Prof. Vincenzo Maria Mastronardi, Psychiatrist, Clinical Criminologist, Psychotherapist, Former Director of the Chair of Forensic Psychopathology at Sapienza University of Rome, is planning a Master's degree for "Criminal Mediator Expert in Restorative Justice" at the Humanitas University Consortium in Rome, which can also be accessed in FAD mode for a duration of 12 months, in line with the innovations and requirements introduced by the Reform.
Furthermore, I recommend you read an excellent book written by my colleague and friend Arianna Agnese, ”Restorative Justice in Legislative Decree 150/2022 critical reflections at first reading by Arianna Agnese and Francesco P. Marinaro” which I found very useful in studying the topic and from which I took inspiration for the article.
A unique event!
I have never participated or attended such a beautiful, enriching and wonderful event as the one organized by AMI Associazione Avvocati Matrimonialisti Italiani.
It is a unique and special reality and I am proud to represent Milan!
