06 November 2024 :

October 11, 2024 - Two years after the enactment of the restorative justice law, the so-called Cartabia Law or Cartabia Reform, Hand off Cain publishes 2 interviews with experts in the field, Patrizia Patrizi and Gemma Varona. In some passages where terminology can be very specific, footnotes have been added, but overall the current condition of restorative justice in Italy and beyond is meticulously outlined.

Gemma Varona, a full university professor, has long coordinated restorative justice projects in the Basque Country, the most important and difficult in Spain because it was also linked to a period of civil war/armed struggle that, under the now-current name “Basque conflict,” lasted 43 years, from 1968 to 2011. It was a very difficult period, with more than 800 deaths[1] at the hands of “terrorists” and at least 60 in the “dirty war” waged by the Spanish state against the independentists.
We have listened on several occasions to Professor Varona tell of the great work that has long been done within the Basque community to “dress the wounds.”

In Italy, the Cartabia reform recently introduced restorative justice, which is taking its first steps. The law, in theory, would stipulate (Article 54) that restorative mediation pathways can be accessed by everyone, regardless of the crime charged and the level of judgment. Considering that Spain has important points in common with Italy (number of inhabitants, Catholic tradition and a past of armed struggles), we asked Professor Varona to tell us what the restorative situation is like in her region.

There is an interesting element, an excellent point of comparison: Spain, unlike Italy, does not have a restorative justice law, but it does have legislation that seeks to apply the principles contained in the 2012 European Union Directive on the Rights of Victims of Crime[2][3].
Only Navarre, an area bordering the Basque territories in the north, on the border with France, has a law that refers to restorative justice, but it is a law that cannot change criminal law, but it can establish cross-cutting policies to develop RJ at different levels. The other regions don't have it, they all refer to the “central” Spanish legislation that applies the European directive on victims, and as much as the legislation on victims is being reformed, and we restorative justice experts have been called in, it will remain a law dedicated to “victims,” not to “restorative justice.Moreover, this issue in the Basque regions is very controversial; not everyone believes that the season of armed struggle merits “mediation” and that we “restorativeists” can actually operate within the framework of the “victims law.”

If we understand correctly, some believe that if there is only a victims' law, then we should only deal with them, without involving other parties, especially without involving those who in Spanish are called “victimari,” that is, “those who caused the victims,” more briefly the “offenders.” This is somewhat the problem that Restorative Justice faces all over the world, but it is an instrumental reading. Anyone who has studied the subject knows that the theoretical basis of Restorative Justice is centered precisely on restoring a role to the victims, which would like to reconsider the criminal process by paying more attention to the victims, who in the current trials have been almost completely deprived of their role by the prosecution, which is supposed to “represent” them but in fact has practically “replaced” them.
The problem is well known, we have even in Italy those who, talking about offenders, say “there is nothing to discuss, just throw away the key (of the cell).”

This is true, and in fact there is no conflict between the theoretical principles of restorative justice and our victim legislation. The difference, which we Spaniards cherish, is that we who work in this field are not given conditions, and we are given more autonomy from the state. We are called to help the victims, not to help the state in the management of criminal trials, as happens for example in Italy, but also in other countries.

The goal is the same, to work to reduce the “negative feeling” between the victim of a crime, or misdeed, and the person or persons who committed it. Ss all restorative theories explain, if this “negative feeling/grudge” is reduced, the entire community benefits from it, and also the state that administratively represents that community. It seems that as long as you “mediators” in Spain are called upon to intervene “on behalf of the victims,” your work will be more autonomous and the results for the entire community will probably be better.

The goal of Restorative Justice (restoring relations in a peaceful and just way) necessarily involves the community, especially in cases of political violence. There is a difference between being called by the state to do restorative practices or being called by the community... There is a harm not only to the victims as individuals, but to the community... acts that were generated by political, ideological motivations are different... they were generated, one might say, not by the impulses of an individual, but by a part of the community, and it is with the community, the communities, that a new dialogue must be installed...

Gradual results, however very gradual. From this point of view, it is perfectly understandable that the Italian law is struggling to get off the ground. Wouldn't a clearer law, one that also emphasized the state's commitment to the reconciliation of communities that have experienced a very strong conflict, as in the Basque region, help?

Now there is a big controversy in Spain. Should we regulate or not? Should we have concrete restorative justice legislation or not?
My position is that maybe we shouldn't. Prosecutors and judges would like to do that. They would like to have uniform guidelines. They say they would feel safer, more protected when they divert cases from the normal judicial route to the alternative “restorative” route, when they send cases to restorative justice. Facilitators (we in Spain have kept the international term of Facilitator, while you in Italy have adopted that of Mediator) and other people, including researchers, are of the opinion that maybe if we do that, the mind is more legalistic. Probably the new law will regulate what can be sent and what cannot be sent.
They will want to have a list and there will be a list of excluded things. So maybe it is better or maybe it is more binding, like saying you have to do this, this and this.
The risk, when you put formal rules in such a sensitive and controversial subject, is that you end up taking away the creativity, the adaptation, the flexibility and the almost “craftsmanship” of restorative justice. There is this debate and so far, it is true, we do not have specific restorative justice legislation, either for juveniles or adults.

I know you have limitations regarding gender-based violence. This limitation in the Cartabia Law is not there.

In Spain we have a prohibition that refers to mediation or conciliation, but it does not mention R.J.
In fact, it is only prohibited to conduct mediation for violence in relationships when the aggressor is a man and the victim is a woman. This is the only explicit prohibition, for all other cases mediation may be neglected or not taken seriously, but it is not prohibited. It is banned for cases of intimate partner violence, partner or former partner, but only when the aggressor is a man and the victim is a woman. And only when the man is an adult. So if it is a “minor” man, it can be done without any problem. Paradoxically. But again, the ban does not mention restorative justice practices.
And then we have a new Sexual Freedom Act of 2022[4], so two years old. That too bans mediation and conciliation, for any kind of sexual violence, so they say, but not R.J.
Obviously, a law that “bans mediation” is not a law that refers to the principles of restorative justice, but the opposite is also true: we who work following restorative theories do not feel bound by a law that clearly does not speak about us. We are not convened for a trial on gender-based violence? That's fine. But we can continue to work on offenders, maybe after conviction. At least I think so. Now, because this “ban” law should apply to so many cases, in the end it is not really enforced. Also because, again, the ban is about mediation and conciliation, not restorative justice, which is philosophically something else. Yes, it is also written in the European law: you cannot impose mediation and reconciliation, so we are not going to impose mediation on anybody.
But the point is that restorative justice, as everyone knows, is only such if it is a free choice of all participants, it can never be imposed. Therefore, when we talk about forced reconciliation and mediation or conversely, but it is the same thing, prohibited, it is clear that we are not talking about restorative justice. Yes, it would be an oxymoron.

If we understand correctly, in Spain you have a new 2022 law on sexual freedom, which also deals with offenses in this area, and that uses terms that would be proper to restorative justice, but declined in such a way that it is actually antinomian to the cardinal principle of restorative justice, absolute voluntariness. Imposing something for which there is no voluntariness, or conversely forbidding something for which there would be voluntariness, is not restorative justice.

Yes. And I must say that the internationally recognized and accepted principles of restorative justice have found unexpected application in prisons. The work in prisons came rather late, but now it is really advancing, there are many people working, many volunteers, and there is also some public money, and now many people are participating in the restorative justice program in prisons.
Why is this happening? Well, the first thing is that if a person is in prison, it means that there has been a court sentence, which means there is a clear starting point for both the offender and for us facilitators. You can discuss, of course, judicial truth, you have to work, you have to interpret, and you have experiences, but you already have something in terms of a court judgment, so you don't have to worry so much about the presumption of innocence. If you approach a person before the trial, all your attention will be on pleading innocence, or at least giving a version of the facts that will help the future trial. If you intervene only after the sentencing, the relationships are clearer, the same person will still tend to insist on the “mistakes” of the judge, or of the person who conducted the investigation, but it is a less granitic, more manageable approach. And then there is no question of time.
In court, facilitators have only two or three months to have the meeting prepared. In these cases, two or three months is not that long. In fact, it is very little time.
In prison, however, there is no rush. With calmness, you can really do restorative justice. I think these are the two factors that are contributing to a great use of restorative justice, which is unexpected, as I said, because restorative justice, for many judges and prosecutors, was a kind of plea bargaining, a way to easily get rid of cases, saving money.

It is widely believed that in Spain, even in the absence of a specific law, you are doing a good job...

Yes, in fact we are doing a good job, not so much in the pre-trial phase, but in the post-trial phase. There is a shift in roles... “Classical” restorative justice would prioritize ‘reconciliation’ between victim and offender; we put that moment on standby and start reconciling the offender with the community that sentenced him. He, the offender, even though we insist on explaining to him that we are absolutely impartial and that we do not represent the state in any way, or even the victim, does not quite grasp this concept and more or less explicitly considers us “representatives of the community.” So he accepts mediation with us....

Of course, this is a serious error in perspective according to restorative standards, but I guess you start the dialogue anyway, trusting that things will become clear in the next steps...

Yes, we recognize that it is still a first step, and we don't get into subtlety. After the work we do with the offender, only after, only after some time, can the possibility of him meeting the victim mature.

Before the trial, especially if the facts are serious, not only is it difficult for the victim to be willing to meet with the offender, but if the meeting did take place, it would still be counterproductive, because the offender would not behave well, would think mainly about “defending himself” and would not pay adequate attention to the emotional needs of the victim. You Facilitators should all be good psychologists to avoid this, the so-called “secondary victimization,” that is, the victim feeling victimized a second time because in the process his or her requests are not heard and his or her point of view is ignored, increasing frustration instead of alleviating it.

It is not easy. In these restorative procedures there is both the hand of the jurist and the hand of the psychologist. They are different approaches that must learn to work together. It takes the hand of the psychologist, of course, but it also takes the hand of the jurist, the social worker, the philosopher, in short, of many, those who have been involved in restorative justice, in any kind of role. This is an issue: who are the stakeholders, who really influences the drafting of legislation? This is very interesting, because depending on the type of legislation, different professionals have a greater or lesser role. And my sense is that when these ideas of having specific restorative justice legislation come from lawyers, always.

We would like to ask you about your work with communities, because you have worked more on communities and maybe it is easier in the Basque Country to understand what a community is.
Because maybe here in Italy we have a tendency to divide ourselves by political sides, but it's not the same thing, it's not the same kind of community.

In restorative justice you have to focus on the process, the conversation. But in any case, it is very important to consider that how can you represent the community with only two people? Because the facilitator is not really.... There are different types of facilitation, but the facilitator doesn't necessarily represent the community. He shouldn't, I think. I don't know.
Communities, because of politics, don't have a lot of money for these community initiatives, but to me they are a very good example of what restorative justice should be. Because they arise, and we do it a lot with political violence in the Basque Country, to deal with the past, for things that maybe the criminal justice system has acted, and maybe it hasn't acted, because they're prescribed, because we don't know the perpetrator, or whatever. But there is a need in society, there is a need in the community to talk to each other.
Sometimes it's a need of the grandchildren, sometimes it's a need of the elderly, usually it's a need of the children, who live in small towns in the Basque Country, and there is a need to talk. Because restorative justice should address the needs of victims and offenders, the needs of the community.
When, for example, there are restorative justice programs in prisons, there are people who say “now you have to meet a victim,” and you look for the victim, as if to say, you need a victim because there is someone who wants to do restorative justice, so you start looking for the victim, and maybe the victim is not interested, or is not found, or is no longer there, but you still need to have it, because if you have this conceptualization of a treatment, or a rehabilitation, then obviously you need the other person, but then there is the risk of objectification, of instrumentalization. In community-based programs, on the other hand, this is more difficult, because there are needs in society that are under the control of community-based organizations, and they are the ones who organize this, because there is a need that has been expressed. These are not initiatives that can come from a prosecutor, a judge, or a prosecutor.
People in prison may not know what restorative justice is, but they say, “I would like to talk.” That's the point, it's like, I don't know, if you watch the 2018 documentary film on sexual assault, The Meeting,[5], I really recommend it, there was a point where the young Irish woman, ten years after the assault, said, “I want to talk, I want to talk.” While the criminal justice system is based on separation of the parties involved, the young woman, after ten years of suffering, depression and anxiety, felt that she could only find peace if she could face her “monster” and get to know him as a person.
And so this woman learned about restorative justice and said, “Maybe this is what I needed, I don't know. Actually, my need was to talk. I wanted to talk to the community that hurt me, what we call secondary victimization, and maybe I also wanted to talk to the man who raped me, if that's the case.
And some people want to do that. And they ask themselves, they ask us, “Why can't I talk?”
This is very interesting to me, because this is exactly how restorative justice should be: people have this need. A need that is often overlooked, almost always I would say ... that's where the restorative work that we, in this “public service” sense, do in prisons comes in, because finally we are a public service, at least in the sense that we are community-based ... but it's a service that also needs to be supported, to ensure equitable access, because obviously the problem with community-based voluntary organizations is that they don't reach everybody. It depends a lot on how you know that there is this service or this opportunity for access. So there is the issue of equal access to restorative justice. Because I know I have evidence that this approach helps people and communities, I have to do my best as a policymaker, as a legislator, if that's the case, to ensure that there is equal access and to ensure that there are a significant number of people in states who are able to do it.
But restorative justice is not, of course, the solution for everything. It is not the solution for all of society's problems or all of the problems that a person might have.
It is a part of the solution. It is a step toward a horizon. And it is also an investment in peace.

And if peace seems too much of a word, it is at least an investment in reducing the too much aggression that permeates all areas of our communities... Thank you professor!

(Edited by Arianna Fioravanti)

[1] Rául López Romo (Informe Foronda: los efectos del terrorismo en la sociedad vasca), https://it.scribd.com/doc/258917231/Informe-Foronda, but also Wikipedia “Basque Conflict ” https://it.wikipedia.org/wiki/Conflitto_basco
[2] Directive 2012/29/EU of the European Parliament and of the Council of October 25, 2012, establishing minimum standards on the rights, support and protection of victims of crime.
[3] Spain is composed of regions that are also granted a degree of autonomy in justice matters, but it is not complete autonomy. In the field of criminal justice, for example, regions cannot contradict national law, but only supplement it in aspects of particular interest and specificity to the region. Translator's note.
[4] Ley Orgánica 10/2022, de 6 de septiembre, de garantía integral de la libertad sexual
[5] https://cineuropa.org/it/interview/349446/