1. Addressing the Paradox of Restorative Justice: The Victims’ Directive & the collapse of labels “victim” & “offender”
Dr. Theo Gavrielides
Founder & Director
The IARS International Institute
Recalibrating Victimhood: Restorative Justice, Victims’ Rights and Social Transformation in the EU and Canada 
5:00-6:30 PM, Room BUS 1-05
Business School , University of Alberta, Edmonton, Alberta, Canada
22nd February 2016

2. Outline The lawyer (i.e. the descriptive and educative part)
2. The philosopher
(i.e. the dodgy part)
3. “Lets talk” …

3. Elliott, L, 2011
“Restorative Justice must be more than a programme within the current system – it must be a new paradigm for responding to harm and conflict with its own philosophical and theoretical framework. Facilitating this shift requires a re-thinking of the assumptions around punishment and justice, placing emphasis instead on values and relationships”
Security with Care

4. Mainstreaming or living in a parallel universe?
How is it possible to proceed with a strategy on restorative justice if its relationship with the criminal justice system is not clarified and agreed?
Is it possible to improve the justice system if we are not in agreement on where restorative justice should fit?
Mainstreaming or living in a parallel universe?

5. The Descriptive & Educative part:
The Victim Directive
DIRECTIVE 2012/29/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2012
Lisbon Treaty 2008 Article 82 (2.b)

6. The Descriptive & Educative part:
According to Article 27, all EU Member States must bring into force the laws, policies, practices, regulations and administrative provisions that are necessary to comply with the Directive by
16 November 2015

7. The Descriptive & Educative part:
Article 288 TFEU provides that the manner and form of implementation of Directives are a matter for each Member State to decide, but at the same time, the CJEU has established case law with general criteria according to which the Commission should review the adequacy of the implementation method chosen. According to the Court, the State’s freedom to decide on the manner of implementation:
‘does not however release it from the obligation to give effect to the provisions of the Directive by means of national provisions of a binding nature ...Mere administrative practices, which by their nature may be altered at the whim of administration, may not be considered as constituting the proper fulfillment of the obligation deriving from that Directive.’

8. The Descriptive & Educative part:
Article 12: Right to safeguards in the context of restorative justice services
Member States shall take measures to safeguard the victim from secondary and repeat victimisation, from intimidation and from retaliation, to be applied when providing any restorative justice services. Such measures shall ensure that victims who choose to participate in restorative justice processes have access to safe and competent restorative justice services, subject to at least the following conditions: 
the restorative justice services are used only if they are in the interest of the victim, subject to any safety considerations, and are based on the victim's free and informed consent, which may be withdrawn at any time;

9. The Descriptive & Educative part:
Article 12: Right to safeguards in the context of restorative justice services
b) before agreeing to participate in the restorative justice process, the victim is provided with full and unbiased information about that process and the potential outcomes as well as information about the procedures for supervising the implementation of any agreement; 
(c) the offender has acknowledged the basic facts of the case; 
(d) any agreement is arrived at voluntarily and may be taken into account in any further criminal proceedings;

10. The Descriptive & Educative part:
Article 12: Right to safeguards in the context of restorative justice services
(e) discussions in restorative justice processes that are not conducted in public are confidential and are not subsequently disclosed, except with the agreement of the parties or as required by national law due to an overriding public interest.
Member States shall facilitate the referral of cases, as appropriate to restorative justice services, including through the establishment of procedures or guidelines on the conditions for such referral.

11. The Descriptive & Educative part:
Definitions for:
Victim/ family members/ child
Victim Services
Restorative Justice
(no definition for offenders)

12. The Descriptive & Educative part:
Victim means:
a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence;
family members of a person whose death was directly caused by a criminal offence and who have suffered harm as a result of that person's death. ‘Family members’ are the spouse, the person who is living with the victim in a committed intimate relationship (i.e. same - or different-sex), in a joint household and on a stable and continuous basis, the relatives in direct line (i.e. parents and children), the siblings and dependants of the victim (i.e. other than dependent children).

13. The Descriptive & Educative part:
Victim support services include:
the provision of information, support and advice in relation to the victims’ role in criminal proceedings including preparation for attendance at the trial. The services can be public or private, voluntary or professional.

14. The Descriptive & Educative part:
Restorative justice is defined as:
“any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of an impartial third party” (Article 2, para 1.d).

15. The Descriptive & Educative part:
The Directive aims to achieve two objectives:
to introduce new rights and obligations, and
to strengthen rights and obligations that existed through the Framework Decision.
It does not oblige Member States to introduce RJ services if they do not have such a mechanism in place in national law.
(also see CJEU rulings in cases C-205/09 Eredics34 and Joined Cases C 483/09 and C 1/10 Gueye/ Sanchez35 interpreting Article 10 FD on mediation)

16. The dodgy part:
… and here is the paradox: a super-law regulating restorative justice and definiting it (and those it aims to empower) when the restorative justice norm tells us not to!

17. The dodgy part:
Isn't the aim of restorative justice to create empathy and remorse and through constructive and honest dialogue create a sense of responsibility in the "offender" and a feeling of empowerment and justice in the "victim”?
Within this framework, shouldn’t the labels of "victim" and "offender" collapse? And if they don’t, should they continue to be the focus of our energy, love and care?

18. Do we even understand the term victim in the same way?

19. Jim – victim? Offender?
“I have managed to heal by sitting in restorative circles…I began feeling the pain inflicted on me in my childhood with others who have experienced the same as they have sat with me in the circle. This became my community of healers. This support helped me to except the truth about my abuse and this feeling work has lead to trusting my own intuition about what is right. Deep down inside of me someplace, it has given me new eyes. There are few filters left for me from which to dilute the truth with, so pain of the brightness of this truth, a knowing pain, is the result, a pain that makes me stronger not weaker. The pain actually never is all gone because as I heal I see my brothers and sisters pain and I feel the same pain. It is in this circle that we all fit, we all feel and we all heal”

20. Alternative Punishment or Alternative to Punishment?
"It leads to obligations for the offenders" Daly
"RJ rewards the patient" Braithwaite
Alternative Punishment
" Coerciveness is where RJ should end the CJS begins" Marshall
"Restorative measures are not inflicted for their own sake" Walgrave
Alternative to Punishment

21. The notion of “Restorative Punishment”
Alternative Punishment or Alternative to Punishment?
None of the above!
The notion of “Restorative Punishment”

22. The dodgy part: My Ferndale grey and rainy night
Catharsis/ restorative punishment/ pain - poini not a moment but a process.
In Jim’s case, this process is his life. He pursues it via dialogue and self-reflection. Restorative justice offers him one way to achieve these objectives.

23. Has it always been “victims” and “offenders”?
The dodgy part:
Has it always been “victims” and “offenders”?
No!
Not until the Middle Ages, when kings established their power and took the conflict-solving process away from the parties involved by creating a firm ‘State’-controlled criminal justice system.

24. The dodgy part:
Barnett (1977) claims that it was the increasing power of kingships as trans-local and trans-tribal institutions that repositioned the victim in criminal justice. This is mainly because they united the tribes and large areas, changing in this way the structure of societies from ‘communitarian/tribal’ to ‘hierarchical/feudal’. Barnett (1977) claimed that what helped this to happen was the ecclesiastic law of that time. This claim is also supported by Tallack (1900).

25. The dodgy part: Restorative Justice – parties in conflict
Central feature of interdependency, determination and self-assurance through the realisation of the existence of others.
Social liaison which connects individuals, and which might be broken if a crime occurs.
The broken social liaison, or what Barnes called the “special relation”, between individuals and individuals and their community is the focus of restoration.

26. The dodgy part:
Marcus Aurelius’ work “Meditations” is helpful to put into context these claims.
He insisted that we are all a part (μέρος) of Nature (φύσις), or of the universe (κόσμος), or of Fate (ειμαρμένη). He said that we stand to the universe as our hands and feet stand to our bodies and that as with organic parts we have mutually interdependent functions and activities, working together (συνεργούσιν) to a common end; a common good. In other words, “we are interdependent parts of an organised whole, and our mutual dependencies determine our nature and our function”.

27. The dodgy part
Alexander Pope, at the end of the first Epistle of the “Essay on Man” he said:
“each of us, like any other natural object, is a part of the universe; it is folly to deny the fact - and folly to wish it changed…for our good is determined and our moral comportment should be governed by our partial statues in the universal All”.
On the other hand, each of us is not only a part, but also a system or a whole. We are, what Barnes calls “partial whole”.

28. The dodgy part: In restorative justice
victim and offender are treated as free individuals, responsible for their actions and decisions. They are not strangers, but related because of the “social liaison” that connects them. It does not matter whether they have met before or not. What is important is that they live in the same environment; let it be social or legal.

29. The dodgy part:
This is the biggest contribution of restorative justice to offender rehabilitation and the collapse of “offenders”:
Under its matrix, victim and offender are seen as two sides of the same coin. The offender is not dealt with as a parasite of society, but as “one of us”. Offenders distort the social liaison, but this does not make them our enemy. On the contrary, their actions are seen as an opportunity to prevent greater evils, “to confront crime with a grace that transforms human lives to paths of love and giving”.

30. The dodgy part How about our role?
The community (us) must strive to instil a sense in individuals to respect and protect the liaison. We should attempt this by keeping a liaison between ourselves and others; not a liaison of control and power, but of care.

31. The dodgy part How about our role?
The imposition of state inflicted punishment is therefore irrelevant. The self-infliction of restorative pain through community care is paramount. A central belief in the restorative thought is that “it is wiser to strengthen our relationship with offenders rather than weaken it” by segregating and ostracising them. That is why “it makes sense to show them that we care about them”.

32. Structured & Unstructured restorative justice

33. Structured & Unstructured restorative justice

34. Where do we go from here?

35. Thank you! Dr. Theo Gavrielides
Founder & Director The IARS International Institute
Founder and co-Director of RJ4All
14 Dock Offices, Surrey Quays Road
Canada Water
London SE16 2XU, UK
+44 (0)
Dr. Gavrielides is also an Adjunct Professor at Simon Fraser University (Canada), and a Visiting Professor at Buckinghamshire New University (UK)