Restorative justice and the Council of Europe: an opportunity for progress

Recently the Council of Europe updated their guidance on restorative justice – processes that bring those harmed by crime or conflict, and those responsible for the harm, into communication, enabling everyone affected by a particular incident to play a part in repairing the harm and finding a positive way forward. In this blog Dr Ian Marder, Scientific Expert to the Council of Europe, explains the background to and content of the new instrument which ‘provides us with an opportunity to engage European governments and professionals working in criminal justice at all levels on the development of restorative justice.’

Setting the scene

In recent years, many European countries have seen significant growth in the awareness, development and use of restorative justice within their criminal justice systems. Some governments have helped or permitted criminal justice agencies to adopt and implement restorative justice locally, while others have legislated or provided funding nationally or regionally to support its use.¹

Yet, it remains the case that restorative justice is rarely used to its full potential. Many countries do not have the capacity or the desire to afford victims and offenders a right of access to restorative justice. Countries which use restorative justice more often, mostly do not systematically inform victims and offenders of their ability to engage in this process. Moreover, many jurisdictions have adopted one or more hybrid restorative-traditional practices, enabling victims and offenders to participate in processes which are described as ‘restorative’, but which offer no opportunity for dialogue between the parties, nor are designed and delivered in accordance with core restorative justice principles.²

Restorative justice is rarely used to its full potential. Many countries do not have the capacity or the desire to afford victims and offenders a right of access to restorative justice.

Indeed, as the terminology of ‘restorative justice’ proliferates across the globe, there seems to be a strong tendency to conceive of many new rehabilitative, reparative, diversionary and/or victim‑oriented interventions as being inherently ‘restorative’ in nature. This necessitates the modernising of international policies in order to clarify the extent to which a given practice reflects the concept of restorative justice, while ensuring that governments and criminal justice institutions adopt an evidence-based approach to maximising its benefits and minimising its risks in the criminal justice context.

International restorative justice instruments: a brief history

In 1999, the Council of Europe adopted Recommendation No. R (99) 19 of the Committee of Ministers to member States concerning mediation in penal matters (hereinafter: ‘the 1999 Recommendation’). This document, and its corresponding commentary, argued for an expansion in the use of mediation in criminal justice and outlined a series of standards and principles for those practices to follow. It discussed the legal basis for penal mediation, safeguards for participants and how mediation services should operate in relation to criminal justice agencies (and vice versa).

In 2007, however, the European Commission for the Efficiency of Justice (CEPEJ) argued that, within many member States, there remained a general lack of awareness of restorative justice, a lack of availability of restorative justice at some stages of the criminal justice process and a lack of specialised training in its delivery. These findings were taken to signify that the 1999 Recommendation had not been fully implemented.

Nonetheless, the CEPEJ’s evaluation of the 1999 Recommendation suggested that it had a clear effect in a number of European countries. Moreover, the Recommendation strongly influenced the wording of both the 2002 ECOSOC (UN) Resolution and, in 2012, Directive 2012/29/EU of the European Parliament and of the Council, establishing minimum standards on the rights, support and protection of victims of crime in Europe (hereinafter: ‘the Directive’). These instruments also reflected a broader transition that was taking place within the field: the use of terminology relating to ‘mediation in penal matters’ was in decline, while vocabulary relating to ‘restorative justice’ – encompassing both principles and practices – was gaining ground.

The Directive’s focus on victims also means that it does not explicate the broader themes and innovations that are apparent in the modern development of restorative justice, such as its role in achieving desistance and its applicability beyond the criminal procedure.

The Directive in particular has stimulated various legislative and policy activities across Europe, requiring European Union (EU) member states to enhance victims’ statutory rights and develop services for victims of crime. It discusses the use of restorative justice, creating a responsibility for criminal justice actors to inform victims about the available restorative justice services in their local area, and outlining various protections for participating victims. It also utilises virtually the same definition as that which was contained within the 1999 Recommendation, although it does so in reference to the term ‘restorative justice’ instead of ‘mediation in penal matters’. However, the Directive stops short of creating a right of access to restorative justice for victims of crime and focuses exclusively on victims’ rights at the expense of providing similar protections for offenders.³ Its focus on victims also means that it does not explicate the broader themes and innovations that are apparent in the modern development of restorative justice, such as its role in achieving desistance and its applicability beyond the criminal procedure.

Current developments in the Council of Europe

In 2016, the European Committee on Crime Problems (CDPC), a body within the Council of Europe, asked its subordinate body, the Council for Penological Co‑operation (PC‑CP), to explore whether the 1999 Recommendation should be revised. The PC‑CP ultimately decided to revise the 1999 Recommendation with four key aims:

• to enhance the awareness, development and use of restorative justice in relation to member States’ criminal justice systems;
• to elaborate on standards for its use, thereby encouraging safe, effective and evidence‑based practice, and a more balanced approach to the conceptualisation and development of restorative justice than is implied by the Victims’ Directive;
• to integrate a broader understanding of restorative justice and its principles into the (comparatively narrow) 1999 Recommendation; and
• to elaborate on the use of restorative justice by prison and probation services, the traditional remit of the PC‑CP.

In January 2017, I was hired as a Scientific Expert to assist the PC-CP’s Working Group in exploring the contemporary restorative justice landscape and drafting a new instrument to replace the 1999 Recommendation. Members of the Working Group are criminal justice experts, drawn from prison and probation administrations, academia and Justice Ministries from Council of Europe member States. NGOs, including EuroPris and the Confederation of European Probation, are also represented. All of these persons contributed to the drafting process, as did the European Forum for Restorative Justice, who were invited to attend the relevant Working Group meetings.

The first step involved consultation. With Edit Törzs and Tim Chapman (European Forum for Restorative Justice), we used the infrastructure of the Community of Restorative Researchers and the European Forum for Restorative Justice to draw attention to the possibility of a new Recommendation and explore how our colleagues from around the world thought the 1999 Recommendation might be further developed. Respondents to these consultations generally considered that the 1999 Recommendation was substantially sound, and that many European countries were yet to reach the high standards detailed in the original Recommendation. Still, respondents identified a variety of ways in which a new Recommendation might go further in delineating evidence-based standards and supporting the development of restorative justice policies and practices.

As of June 2018, drafts of the new Recommendation and its commentary have been approved and adopted by the PC-CP Working Group, the PC-CP Plenary meeting and the CDPC Plenary meeting. The documents are currently awaiting approval by the Council of Ministers, which is the last stage in the process. Once approved at this level, we will have a new European legal instrument that applies to all the Council of Europe’s member States. At the time of writing, the latest drafts of the Recommendation and its commentary to be published are those which were released prior to the most recent meeting of the CDPC in early June 2018.

The Recommendation is clear that there is a role for all policymakers, practitioners and other professionals involved in criminal justice to promote, enable or use restorative justice, or otherwise to understand restorative principles and integrate them into their work.

In their current form, these documents go much further than the 1999 Recommendation in calling for a broader shift in criminal justice across Europe towards a more restorative culture within criminal justice systems and agencies. They seek to provide a definition of restorative justice which encompasses and promotes both its principles and its practices. They outline evidence-based standards for victim-offender dialogue, and strongly urge member States to develop the capacity to deliver this service safely and effectively. They also reflect some of the more recent trends and innovations in the development of restorative justice. In particular, they outline how restorative principles can be used to underpin reform in criminal justice more broadly, while suggesting some of the circumstances in which restorative approaches can be used in criminal justice institutions, beyond the criminal procedure. The Recommendation is clear that there is a role for all policymakers, practitioners and other professionals involved in criminal justice to promote, enable or use restorative justice, or otherwise to understand restorative principles and integrate them into their work.

Across Europe, many victims and offenders remain excluded from the well‑evidenced benefits of restorative justice. This is due in part to some professional gatekeepers being unaware or unsupportive of restorative justice. Though the Recommendation is not legally binding, it provides us with an opportunity to engage European governments and professionals working in criminal justice at all levels on the development of restorative justice. Moreover, for those jurisdictions which wish to take this work forward, the Recommendation can be used as a template for their own policies, as has been the case with the Council of Europe’s criminal justice instruments in the past. Considering that the United Nations recently passed a new Resolution committing itself to updating its own materials on restorative justice, I am permitting myself to feel somewhat optimistic about the fate of restorative justice in the coming years.

¹ Dünkel, F., Grzywa-Holten, J. & Horsfield, P., 2015. Restorative Justice and Mediation in Penal Matters in Europe – Comparative overview. In: F. Dünkel, J. Grzywa-Holten & P. Horsfield, eds. Restorative Justice and Mediation in Penal Matters: A stock-taking of legal issues, implementation strategies and outcomes in 36 European countries (Vol. 2). Mönchengladbach: Forum Verlag Godesberg, pp. 1015-1096.

² Strang, H. & Sherman, L., 2015. The morality of evidence. Restorative Justice, 3(1), pp. 6-27.

³ Lauwaert, K., 2013. Restorative justice in the 2012 EU Victims Directive: A right to quality service, but no right to equal access for victims of crime. Restorative Justice, 1(3), pp. 414-425.

More information

PRI’s Global Prison Trends 2018 publication reported on the growing trend of restorative justice and the barriers to its acceptance and implementation. Read more here.