Restorative justice: more than a fad, a necessity

In the criminal justice system restorative justice and dispute resolution mechanisms must be applied, to guarantee the rights of victims, that the guilty party does not go unpunished, that the damage is repaired and that the social reintegration of those who break the law is achieved, it was made clear during the II International Virtual Congress on Criminal Law Carlos Daza Gómez. In memoriam.

Karen Palma Carrascoza, from the Faculty of Law (FD) of the UNAM, stated that Alternative Dispute Resolution Mechanisms (ADR), as well as restorative justice, are not a fashion, but a necessity. She considered that academics should focus on changing the "chip" from a litigation lawyer to a negotiator, and sow the seed of the culture of peace to the new generations of specialists; students are curious to discover these mechanisms, she said.

In past generations, she said, "we failed to stop learning to be confrontational subjects, and not open to dialogue, empathy, and active listening. Now, with the new FD curriculum, teaching is closer to reality, so that this issue does not remain only in reforms to laws that have not yielded results.

During the meeting convened by the FD, she recalled that in 2014 the National Law on Alternative Dispute Resolution Mechanisms in Criminal Matters was enacted, in which three main forms are recognized: mediation, conciliation, and restorative boards, which may be used at the will of the parties to land a criminal conflict in a figure called "alternative exits".

Alternative justice is the solution of conflicts in a manner different from the ordinary procedure. It includes ADR and parallel solutions to the process, in which opportunity criteria and abbreviated procedures are considered. In any of these forms, the important thing is to comply with the purposes of the criminal process, which are the clarification of the facts, the protection of the innocent, that the guilty party does not go unpunished, and the reparation of the damage.

Meanwhile, restorative justice is the systematic response to crime that emphasizes the healing of the wounds caused by the criminal act in victims, offenders, and communities, focusing on social reintegration. For example, it tries to make the accused, prosecuted or sentenced person aware of the damage caused and take responsibility for it, in addition to society's support and participation in the reintegration of the social fabric. "It turns to see the victim and his or her restoration." This is why it is needed in our criminal justice system, she stressed.

Raúl Carnevali Rodríguez, deputy director of the Center for Criminal Law Studies of the University of Talca, Chile, said: we have a criminal procedural system, fundamentally retributive, which focuses on punishing the perpetrator and imposing a penalty, where the victim has no special recognition. It also includes alternative solutions such as reparatory agreements, which although they are mechanisms that allow an agreement between perpetrator and victim, sometimes how they are carried out does not have a sufficient restorative approach to satisfy the affected person.

In the instruments that the State makes available to citizens to solve criminal conflicts, such as the retributive system, it must also be borne in mind that it is fundamentally structured on the relationship between the State and the perpetrator, while the victim has a secondary role. When a penalty is imposed, said Carnevali Rodriguez, the victim is symbolically acknowledged, but his or her restoration needs are not particularly attended to.

The specialist questioned the fact that punishment should be the only or main response to a crime; criminal dogmatics is generally focused on the perpetrator and the sanction. It is, therefore, necessary to look for other answers. Punishment has negative effects that cannot be denied, such as stigmatizing effects, which hinder the reintegration of the perpetrator into society. "It is not a question of abolishing the penal system, but of opening up to other ways, to other ways of responding to a criminal act," he clarified.

Óscar Daniel Franco Conforti, from the Universidad Oberta de Cataluña, Spain, mentioned that the pandemic confronts us with a problem whose solution depends, to a certain extent, on the development we can have and on the realization of social rights, which is far from satisfactory. We believe that the challenge of modern society is to proclaim guarantees and yet to develop their protection.

He added that it turned us into potential bacteriological weapons and takes us to the category of bio-weapons of mass destruction; at the beginning of the sanitary emergency, when people from China or Italy were mentioned, there was an automatic association, without scientific basis, with a "bioterrorist potential" that could carry the virus, which was unfair.

The image of the suspicious immigrant, the enemy, is still going around in our heads. When a resident of an "infected" locality arrived, the reaction was very negative, of social reproach for transferring the virus to another city, because the contagious effect is multiplied", concluded Franco Conforti.

Source: UNAM