Dr. Ian D. Marder – Assistant Professor in Criminology, Maynooth University School of Law and Criminology
Dr. Petra Masopust Šachová – Chairperson, Czech Institute for Restorative Justice
The Venice Declaration – what happened?
After announcing wide-ranging criminal justice reforms that incorporate restorative justice, the Italian government opted to focus on this topic for its Presidency of the Council of Europe’s Committee of Ministers. In December 2021, this culminated in 40 ministerial delegations unanimously adopting the Venice Declaration on the Role of Restorative Justice in Criminal Matters. The Declaration reiterates some key elements of the Council of Europe Recommendation CM/Rec(2018)8 concerning restorative justice in criminal matters, while moving us forward in some small, but important, ways. These include provisions on service development, cultural change and higher education, and requests for the Council of Europe to take action in support of national governments.
The Declaration was developed over two sessions. First, at a preparatory meeting in Como in October 2021, senior civil servants from European justice ministries discussed how to adapt restorative justice for child perpetrators and victims, its role in supporting desistance, redress, reintegration and victim recovery, and the importance of training in implementing the 2018 Recommendation.
Two months later, Venice hosted the Conference of Ministers of Justice. This opened with speeches from high-level officials, including the Minister of Justice of Italy, and the Council of Europe’s Secretary General and President of the Parliamentary Assembly. They expressed strong support for restorative justice, their speeches indicating a high level of consensus in relation to its evidenced benefits and its future development. The Secretary General, for example, noted that ‘progress on [implementing the Recommendation] has been uneven’ and encouraged ‘member states to look again at whether they might do more to implement [its] terms’. This set the stage for the ministers to make headway.
What was the thinking at the time?
In conversations with restorative justice advocates over 2021, concerns emerged that the Declaration risked stagnating, or even watering down, European commitments to restorative justice, considering the highly progressive detail of the Recommendation that it sought to follow. Ultimately, however, it successfully reiterated core elements of the Recommendation – its initial paragraphs confirming that Ministers ‘fully support’ the Recommendation, before defining and outlining the primary benefits of restorative justice in accordance with the Recommendation’s principles and provisions.
Moreover, the Declaration’s language furthers both the spirit and content of the Recommendation in several ways. Most importantly for the development of restorative justice services, Paragraph 15 calls for governments to ‘stimulate […] a wide implementation of restorative justice, its principles and methods,’ both alongside and as an alternative to criminal proceedings. The Declaration follows the Recommendation (Rule 18) in recognising the universal application of restorative justice for all offence types, even remarking on ‘the possible positive impact of restorative justice paths also on countering the radicalisation of individuals’. This is significant given the political sensitivity of radicalisation, and the likelihood that many would presume that restorative justice was inappropriate in this setting (see also Biffi, 2021). Through these general and specific observations, the Committee of Ministers clearly recognises that no offence type is off limits for restorative justice.
Member States, it continues, should ‘develop national action plans or policies’ to implement the 2018 Recommendation through ‘inter-agency co-operation nationwide [and] adequate national legislation and funding, while reflecting on the idea 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’. The main failure of the Recommendation was that it omitted a right to restorative justice from its main text – albeit, its commentary (p.7) notes that ‘victims and offenders should, ideally, have the right to access restorative justice’. The Declaration uses similarly non-committal language, but the more optimistic among us can hope that its words add legitimacy to calls for such a right. That such a right would be for ‘all the interested parties, if they freely consent’ is also significant given the balance this implies, relative to suggestions that victims alone might have a right to restorative justice.
Beyond this, the Declaration further aligns the European framework with restorative justice theories and principles. For example, Paragraph 9 states: ‘restorative justice can represent an important tool for addressing conflicts arising from criminal acts and for fostering social cohesion by solving such conflicts and for looking at conflicts not as an occasion for further social divisions.’ This recognises the relationship between crime and conflict, as Nils Christie asserted.
Paragraph 10 frames restorative justice as ‘a broader culture that should permeate the criminal justice system based on the participation of the victim and the offender on a voluntary basis, as well as other affected parties and the wider community in addressing and repairing the harm caused by crime’. This builds on the Recommendation’s commentary (p.2), which called for ‘a broader shift in criminal justice across Europe towards a more restorative culture and approach’. Similarly, the Recommendation asks that all practitioners receive training to ‘understand [restorative] principles and […] apply them in the course of their day-to-day work’ (Rule 57). It also outlines that criminal justice institutions should apply restorative principles across their work (Rule 59), use restorative processes to resolve conflicts outside the criminal procedure (Rule 60), and proactively build and maintain relationships (Rule 61). The more that the international framework references these ideas, the more that calls for their implementation will be normalised in the eyes of domestic stakeholders.
The Declaration also provides that restorative justice should be taught in higher education, ‘invit[ing] the Council of Europe to encourage and assist its member States to […] reflect on how to include the principles, methods, practices and safeguards of restorative justice in university curricula and other tertiary level education programmes for jurists’. This builds on the commentary to Rule 57: ‘university courses which pertain to criminology or to the administration of the criminal justice system should include restorative justice as part of their curricula.’ Not only must lawyers and judges fully understand restorative justice to enable and support its use (Marder and Wexler, 2021), but their degrees might also use restorative practices to support students to reflect on the goals of their practice and develop an explicit ‘philosophy of lawyering’ (Vedananda, 2020). Academics wishing to incorporate restorative justice in their curricula should note these provisions – and join the new Restorative Justice Pedagogy Network, which organises regular workshops on the teaching of restorative justice in universities.
Finally, the Declaration asks that the Council of Europe show leadership and take action to support its member States to implement restorative justice. Paragraph 14 asserts that the Council of Europe ‘is uniquely placed to take the lead on further work in this area […] through standard-setting, monitoring and co-operation/awareness-raising activities aimed at achieving a greater unity and harmonisation between the Council of Europe member States’. Paragraph 16 lists specific actions that the Council of Europe could lead, namely to study European laws and practice models, exchange knowledge and best practice, elaborate a set of high-level principles on restorative justice, and assess the implementation of the 2018 Recommendation. The resourcing of the Council of Europe to instigate these actions would create a fantastic opportunity for cross-European collaboration on policy and service development.
What needs to happen next?
The Declaration coincides with a rapidly evolving international framework, and with many jurisdictions (including Ireland, Scotland, Estonia, the Czech Republic and Italy, among others) accelerating the legal and policy development of restorative justice, introducing or expanding services, and using restorative practices to change institutional cultures. In 2020, one of us analysed the changes in the international framework between 2018 and 2020 (Marder, 2020). Since then, there have been developments at the Council of Europe, European Union and United Nations. These include:
- Council of Europe Recommendation CM/Rec(2021)6 regarding the assessment, management and reintegration of persons accused or convicted of a sexual offence states: ‘Participation in restorative justice interventions, where available and appropriate, should be facilitated by providing information on the[ir] nature, relevance and availability’ (Rule 33).
- The forthcoming revisions to Recommendation CM/Rec(2006)8 on assistance to crime victims seems likely to include extensive additions on restorative justice services.
- Within the EU, the European Commission recently concluded its consultation to evaluate the Victims’ Directive, to which the European Forum for Restorative Justice (2021) contributed.
- The EU’s Judicial Training Strategy (2021-24) considers that judges should be ‘trained to better support and communicate with’ victims (p.3).
- At the United Nations, the Kyoto Declaration (2021) called for the development of ‘restorative justice processes at relevant stages in criminal proceedings in order to assist the recovery of victims and the reintegration of offenders” (Art. 42).
- The UN also published a common position on incarceration (2021: 9), which states: ‘the focus of criminal justice responses should be shifted from imposing punishment and isolation to investing in longer-term strategies for crime prevention, rehabilitation, restorative justice and social reintegration, with an emphasis on the most vulnerable’.
Europe may see an imminent opportunity to lobby for further progress, if a decision is made to revise the EU Victims’ Directive. There may also be scope to develop a binding legal instrument on restorative justice at that level. However, the European framework is already clear: those who are responsible for domestic criminal law and criminal justice policies and practices should act to mainstream restorative justice throughout their criminal justice systems. As the Declaration comments, the Council of Europe is well-placed to connect stakeholders and provide resources to support this work, but the majority of the work must take place at the national level, through an inclusive policy process led by governments, in collaboration with justice agencies, restorative justice practitioners and civil society.
As societies open up after COVID-19, many movements and groups will seek to capture governments’ attention and focus. Those that succeed will be those with the best stories, and that are best organised to take the right actions at the right times. We must collaborate to keep the pressure on at the highest levels, if we expect to maintain this momentum and to translate international policy into real changes on the ground.
This blog is reproduced with permission from the European Forum for Restorative Justice