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In recent years, the level of morality and culture of population has decreased considerably. It has particularly affected the younger generation. The level of legal culture is very low in a significant proportion of children and adolescents. This fact leads to a large number of offenses committed by juveniles, while the number of serious crimes increases every year. For modern society, there is an objective task of forming justice for children and adolescents. To solve this problem, an effective system of state support and prevention should be created that would allow children to be acquainted with their rights and obligations at an affordable level. To reduce the number of crimes committed by juveniles, it is necessary to change the punitive function of justice to restorative. The purpose of the paper is to study the notion of restorative justice and its relation to juveniles.
The Essence of the Concept of Restorative Justice
Models of juvenile justice are different in different countries. Thus, Bazemore and Schiff in their book Juvenile Justice Reform and Restorative Justice note that “in many communities, in various parts of the world, citizens and juvenile justice professionals are engaged in new and distinctive encounters with young offenders, their victims, families, and supporters” (3). There are various valuable accents and directions of activity. Additionally, there is no consensus on the causes of crime and victimization as well as on effective approaches to the prevention and management of crime. In general, the majority of the debate exists in a continuum between punishment and rehabilitation. Rehabilitation and a correctional approach as contrasted to punishment are associated with the diagnostics and scientific expertise. A child or a teenager, who has committed crime, is still an object of the research and a passive consumer of help.
With the development of criminal justice, the role of the application of compulsory educational measures towards juvenile offenders increases, which, in turn, entails the need for the introduction of a new legal institution in the industry of criminal procedural law. It is restorative justice. The feature of the criminal proceedings is presented in the fact that it covers not only the imperious activity of the court but also other state bodies and officials exercising the powers conferred on them in the framework of pre-trial proceedings.
Therefore, some countries represent a model of restorative justice. Focusing on juvenile justice as an independent entity presupposes the existence of a separate independent term. The term restorative juvenile justice means a project of formation of juvenile justice of the new generation that has learned the lessons both from the disadvantages of the classical mode and from the danger of reaction to these shortcomings in the form of return to the punitive paradigm. The essence of justice in terms of the concept of restorative justice is to help the victim and the offender resolve their situation.
The essence of restorative justice is that in the criminal proceedings for certain categories of cases, the harm caused by a particular person (the victim) may be reimbursed or otherwise smoothed. Frequently, it is done when the offense is committed by a minor (Bazemore and Schiff 5). Therefore, the principle of inevitability of punishment can be replaced by the principle of the obligation of reparation and compensation. It means that in the commission of a wrongful act by a minor, the latter has a duty in the recovery for moral, physical, and material harm to the victim with the involvement of the offender in the social rehabilitation, restoration, and educational programs rather than punitive justice by the state authorities. However, the effective use of rehabilitation and educational measures in relation to minors is possible only under the condition of close cooperation of the court and law enforcement agencies with the relevant social services. The mutual combination of techniques of rehabilitation, restoration, and education can make a big step in the further correction of juvenile offender and prevent the commission of illegal acts repeatedly. In many cases, the penalty also blocks educational and rehabilitation mechanisms, especially in the form of the deprivation of freedom.
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The conciliation procedure is at the core of the restorative approach. However, it cannot be applied to all categories of criminal cases, and it requires an active understanding of the criminal legal conflict by the offender and the victim. Obviously, the recovery approach is not oriented towards the leniency of criminals but towards the real responsibility (Walgrave 9). This model of criminal justice must form the elements of reflection in the offender and the ability to give an adequate assessment to illegal actions. Only in this case, the task of acceleration of the process will be solved and the reduction of production time on the case will be possible due to the termination of criminal prosecution in connection with reconciliation and the compensation for damage. The positive potential of restorative justice lies in the fact that it possible to reduce the risk of the negative impact on the offender of the criminal justice system.
In terms of the concept of restorative justice, the main defect of the classical juvenile system is not in the rejection of punishment but in the rejection of the principle of responsibility for the crime. The well-being of the child is the most important thing. Hence, the answer to the crime lies in solving the problems of the child-offender. However, the fact of harm to the victim and society is ignored. Such disregard reduces the educational effect of this method of responding to crime. However, punishment and responsibility are not identical concepts.
The main peculiarity of restorative justice is that it is neither punitive nor lenient, and, thus, it opposes both punitive and rehabilitative approaches. The restorative approach points the way to resolving the contradiction between the two extreme ways to respond to crime, each of which has showed certain limitations. The restorative concept has divided responsibility and punishment, introducing a non-punitive responsibility principle (Walgrave 15). A new juvenile justice paradigm – restorative juvenile justice – retains the benefits of the classical juvenile justice with its social and infrastructure rehabilitation. However, it introduces new principles and objectives and, hence, new ways of practical work.
Restorative justice is usually contrasted with the official, punitive one. For a long of time, punitive criminal policy has been peculiar to many states. It anticipated increased use of penalties hard on the content and timing. Thus, Walgrave affirms that “based on empirical and socio-ethical arguments, it is believed that restorative justice can point to the path towards ‘something better’ than penal law” (1). The search for alternatives to retributive justice, in particular in relation to juvenile justice, is associated with the understanding of the insufficient effectiveness of the current system of criminal law measures.
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The essence of the concept of restorative justice lies in a special concept of crime and punishment. Thus, according to the basic ideas of restorative justice, crime is primarily a conflict between individuals, as the result of which damage is caused to victims, communities, and offenders themselves. Only after that, it is a violation of the law. At the same time, the main attention is focused on the interpersonal aspect of the crime. There is an interesting position of Feld and Bishop who have stated that the conflict should belong to the conflicting parties (627). According to them, the government seeking to reduce the number of conflicts has monopolized the right to conflicts (Feld and Bishop 627). In such a way, conflicts have become the property of lawyers. Within restorative justice, criminal process should promote the active involvement in victims, offenders, and community members. The state should not dominate.
The core of the restorative approach becomes a different concept of crime. First, the crime is violence and offense caused to another person. It is not an attack against the state. Crime harms a particular person or a particular social group, and, therefore, it gives rise to the obligations of reparation of harm in a perpetrator. It is how the concept of responsibility is treated.
In law, institutions associated with sanctions of social relations are divided into the compensation for damages, restorative or compensatory, and punishment, or sufferings that a guilty person must undergo from considerations of the public order. Punishment is determined by retributive justice, although it should be remembered that these two types of sanctions could be combined. Accordingly, within the framework of restorative justice, the goal of justice is radically reformulated. It is not punishment but restoration – the resolution of conflict between people and reconciliation.
Advantages of Restorative Justice
The development of reconciliation institute based on the mechanisms of customary law provides numerous advantages and benefits. Not only will prosecutors and investigators gain clarity regarding the application of criminal justice providing the possibility of reconciliation but they will also have a new way to influence the offenders in the form of imposing of personal responsibility in accordance with the conciliatory agreement (Junger-Tas and Decker 178). This method is particularly useful in the cases where the sentence of imprisonment is not appropriate, but impunity is harmful. The systematic application of conciliation procedures would reduce the federal budget expenditures for the prosecution of small cases. If the case ends with reconciliation, the accused will not be kept in jail while awaiting trial. In addition, the termination of the case will allow not conducting the court proceeding. The released funds will be needed for the resistance of professional crime, corruption, and other cases.
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An additional mechanism to address compensation for the harm to the victim will be put into operation in respect of the part of criminal cases. The removal of the extra load on the court will be achieved from the conducting of some of minor cases and partial unloading of the investigators. An active role in resolving the conflict will be returned to the victim and the offender. For the victim, this institution will enable to repair the damage, and if one does not forgive the offender, one reaches the consciousness of justice. For the offender, the meeting with the victim can give repentance, the desire to atone the guilt, and return to normal social relations (Junger-Tas and Decker 179). The procedural capabilities of reconciliation enable to provide the offenders with the social and psychological rehabilitation by sending them to different kinds of social and psychological services and their supervision during this period from the part of the public. The timely rehabilitation of minors is of special importance. Citizens involved in reconciliation will learn a civilized form of disarrangement that is very relevant today. However, these days, the legal significance of the conciliation procedure is not too great. In addition, neither institutional mechanisms nor clear procedures are laid in the foundations of the respective of institute.
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Global Tendencies of Restorative Justice
Restorative justice is an approach to responding to crime in general. However, in relation to juveniles, this approach has a distinct educational value. Therefore, in many countries, the restorative justice program has begun with the application of violations of adolescents. Thus, Junger-Tas and Decker claim that
The police have been developing their practices with young offenders and now deliver cautions using a restorative framework which should help young people relies the harm caused by their offending and may help victims come to terms with the offence. (112)
The procedure of reconciliation is a central link in the organization of work with crime and the offender. In restorative justice, this procedure is realized through mediation. In a broad sense, the term “mediation” denotes a method of conflict resolution with the help of an impartial third party, when the decision is made by the parties themselves.
In modern theory and practice, there are three types of mediation in relation to the criminal proceedings: mediation as an alternative to criminal proceeding, as part of it, and as a complement. In the first case, the case is derived from the criminal proceedings at sufficiently early stages or until the initiation of a criminal case. In the second case, mediation is included in the proceedings as a component of it. It does not mean that mediation is necessarily governed by the rules of criminal procedure but it becomes a kind of an element of the technological process. In this case, mediation is not an alternative. A subsequent stage of the proceedings takes into account the results of the reduction program, especially in the possibility of postponing the verdict, and the court makes a final decision based on the results of mediation (Feld and Bishop 630). If agreement cannot be reached or one of the parties rejects reconciliation, the case is returned to the formal system. The last type is mediation as an addition to the criminal proceedings. In some countries, mediation is practiced in prisons after sentence has been made. Its meaning is not so much in the legal consequences but in the achievement of the humanitarian effects, although in this case there are legal consequences.
The experience of mediation in the cases of juveniles paves the way for mediation in the criminal cases of adults. However, it happens not everywhere. A vivid example is France, where mediation is used primarily to resolve criminal legal conflicts with adult participation. In relation to the juvenile offenders, the possibility of mediation is provided by the law. However, despite this fact, it is less common.
The global trend in the field of restorative justice is seen in its spread and institutionalization. These days, restorative justice is not only theory but also practice. Restorative justice programs operate in many countries, including Canada, the United States, Austria, the Czech Republic, Poland, Great Britain, France, the Netherlands, and many others (Junger-Tas and Dünkel 87). In some countries, the rules on mediation in criminal cases have entered the law. However, at first, they were preceded by a public initiative and an experimenting period. Literature indicates the period of initial projects in Canada and the United States since 1970, and in Europe – since 1980 (Junger-Tas and Dünkel 87). Thus, this process has not completely finished yet.
Gradually, a methodical toolkit of the conducting of programs was formed and organizational-legal schemes appeared linking them with criminal proceedings. Only later, a new practice found legislative support. However, in a number of countries, programs are conducted based on the existing institutions of the criminal justice with no special laws or rules on the mediation in criminal cases. In any case, the implementation of restorative justice is conducted due to the inclusion of mediation of the offender and the victim in the official way of responding to crime. The analysis of a new practice shows that the use of criminal law mediation does not depend on the system of the national criminal justice. However, the differences in national legislation systems have led to the presence of a plurality of specific models of joint mediation with the official justice.
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Analyzing the European practice of mediation, one should mention that two types are distinguished here – mediation in the framework of one’s own powers and public or delegated mediation conducted under the judicial control. In the first case, the officials take steps to reconcile the parties without the help of the third parties. For example, the police in New Zealand conduct mediation within the framework of their powers (Junger-Tas and Dünkel 88). In the second case, the power to organize meetings of the victim and the offender are transmitted to the competent organizations or people. The official body takes the decision to transfer the case for the conduction of such work. The second option is more preferred and common, as an independent person should perform a role of the mediator. A fairly common practice is the use of volunteers for the conduction of programs. This course provides community participation in solving criminal conflicts.
Models of mediations can be combined into several groups. The first group includes models differing by the versions of internal arrangement of programs and a range of participants. The second group is the models that have different ways of tying these programs with the criminal process. The last group includes the variations of programs on the parameter of the subject conducting the mediation.
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There are constant disputes concerning the system of juvenile punishment. In the recent years, many experts have estimated a modern punitive paradigm rather negatively. They point to its low efficiency and even a potential danger to society. An alternative to the punitive justice paradigm in the world practice is restorative justice. Restorative justice has evolved not as a specific response to the infringing conduct of juveniles but as a fundamentally different view on how to respond to crime in general. The general concept of restorative justice provides an answer to the crisis of child justice: how to combine two opposite orientations in response to the infringing conduct of minors – the care of children and the protection of society against juvenile delinquency.