As you may know, the UN Crime Congress this year will consider four agenda items, one of which relates to restorative justice. Immediately after the Congress the UN Commission on Crime Prevention and Criminal Justice -- the body which convenes the Congress -- will also be meeting for a short session. The government of South Africa has notified the Commission that it will be introducing Basic Principles on the Use of Restorative Justice in Criminal Matters. The document South Africa is drawing from was prepared by the Working Party on Restorative Justice, part of the UN NGO Alliance on Crime Prevention and Criminal Justice (NY). The Working Party drew on major documents in the field, including the Council of Europe Recommendation on the Use of Mediation, the Standards developed by SINRJ in the UK, the Declaration of Leuven and the Recommended Ethical Guidelines prepared by VOMA. The drafts have been circulated for comment from individuals and groups around the world that expressed interest in the project. The Basic Principles have also been discussed at various international forums, and have been described in detail in a paper on Restorative Justice prepared for ISPAC. The Working Party is encouraging the support of other governments for the South African initiative. One way of doing that is to demonstrate that the Basic Principles enjoy international support from experts in restorative justice. Would you please review the attached documents, and then respond to me with an indication of your support? The support may be expressed in your own name, but it would be useful to give your affiliations for identification purposes. This is a key time for action. UN adoption of Basic Principles would not only encourage countries to use restorative responses, but would also provide broad guidelines to increase the likelihood that programs are well and effectively run. If you know of others who would be interested in this document, please forward it to them and encourage them to contact me with their indication of support. Thank you. Dan Van Ness for the Working Party on Restorative Justice Dan Van Ness <[EMAIL PROTECTED]> Prison Fellowship International http://www.restorativejustice.org Declaration of Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters I. Definitions 1. "Restorative justice programme" means any programme which uses restorative processes or which administers restorative outcomes. 2. "Restorative outcome" means the agreement reached as the result of a restorative process. Examples of restorative outcomes include restitution, community service, and any other programme or response designed to accomplish reparation of the victim and community, and reintegration of the victim and/or the offender. 3. "Restorative process" means any process in which the victim, the offender and/or any other individuals or community members affected by a crime participate actively together in the resolution of matters arising from the crime, often with the help of a fair and impartial third party. Examples of restorative processes include mediation, conferencing, and sentencing circles. 4. "Parties" means the victim, the offender and any other individuals or community members affected by a crime, who may be involved in a restorative justice programme. 5. "Facilitator" means a fair and impartial third party whose role is to facilitate the participation of victims and offenders in an encounter programme. II. Use of restorative justice programmes 6. Restorative justice programmes should be generally available at all stages of the criminal justice process. 7. Restorative processes should be used only with the free and voluntary consent of the parties. The parties should be able to withdraw such consent at any time during the process. Agreements should be arrived at voluntarily by the parties and contain only reasonable and proportionate obligations. 8. All parties should normally acknowledge the basic facts of a case as a basis for participation in a restorative process. Participation should not be used as evidence of admission of guilt in subsequent legal proceedings. 9. Obvious disparities with respect to factors such as power imbalances and the parties' age, maturity or intellectual capacity should be taken into consideration in referring a case to, and in conducting, a restorative process. Similarly, obvious threats to any of the parties' safety should also be considered in referring any case to, and in conducting, a restorative process. The views of the parties themselves about the suitability of restorative processes or outcomes should be given great deference in this consideration. 10. Where restorative processes and/or outcomes are not possible, criminal justice officials should do all they can to encourage responsibility of the offender toward the victim and affected communities, and reintegration of the victim and/or offender into the community. III. Operation of restorative justice programmes 11. Guidelines and standards should be established, with legislative authority when necessary, which govern the use of restorative justice programmes. Such guidelines and standards should address a. the conditions for the referral of cases to the restorative justice programme b. the handling of cases following a restorative process c. the qualifications, training and assessment of facilitators d. the administration of restorative justice programmes e. standards of competence and ethical rules governing operation of restorative justice programmes 12. Fundamental procedural safeguards should be applied to restorative justice programmes, and in particular to restorative processes. a. The parties should have the right to legal advice before and after the restorative process and, where necessary, to translation/interpretation. Minors should, in addition, have the right to parental assistance. b. Before agreeing to participate in restorative processes, the parties should be fully informed of their rights, the nature of the process and the possible consequences of their decision. c. Neither the victim nor the offender should be induced by unfair means to participate in restorative processes or outcomes. 13. Discussions in restorative processes should be confidential and should not be disclosed subsequently, except with the agreement of the parties. 14. Judicial discharges based on agreements arising out of restorative justice programmes should have the same status as judicial decisions or judgements and should preclude prosecution in respect of the same facts (ne bis in idem). 15. Where no agreement can be made between the parties the case should be referred back to the criminal justice authorities and a decision as to how to proceed should be taken without delay. Lack of agreement may not be used as justification for a more severe sentence in subsequent criminal justice proceedings. 16. Failure to implement an agreement made in the course of a restorative process should be referred back to the restorative programme or to the criminal justice authorities, and a decision as to how to proceed should be taken without delay. Failure to implement the agreement may not be used as justification for a more severe sentence in subsequent criminal justice proceedings. IV. Facilitators 17. Facilitators should be recruited from all sections of society and should generally possess good understanding of local cultures and communities. They should be able to demonstrate sound judgement and interpersonal skills necessary to restorative processes. 18. Facilitators should perform their duties in an impartial manner, based on the facts of the case and on the needs and wishes of the parties. They should always respect the dignity of the parties and ensure that the parties act with respect towards each other. 19. Facilitators should be responsible for providing a safe and appropriate environment for the restorative process. They should be sensitive to any vulnerability of the parties. 20. Facilitators should receive initial training before taking up facilitation duties, and should also receive in-service training. The training should aim at providing skills in conflict resolution, taking into account the particular needs of victims and offenders, and at providing basic knowledge of the criminal justice system, and at providing a thorough knowledge of the operation of the restorative programme in which they will do their work. V. Continuing development of restorative justice programmes 21. There should be regular consultation between criminal justice authorities and administrators of restorative justice programmes to develop a common understanding of restorative processes and outcomes, to increase the extent to which restorative programmes are used, and to explore ways in which restorative approaches might be incorporated into criminal justice practices. 22. Member States should promote research on, and evaluation of, restorative justice programmes to assess the extent to which they result in restorative outcomes, serve as an alternative to the criminal justice process, and provide positive outcomes for all parties. 23. Restorative justice processes may need to undergo change in concrete form over time. Therefore, Member States should encourage regular, rigorous evaluation and modification of such programmes in light of the above "Definitions." 22 Nov 99 draft _ _ _ _ _ _ _ Declaration of Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters I. Definitions 1. "Restorative justice programme" means any programme which uses restorative processes or which administers restorative outcomes. 2. "Restorative outcome" means the agreement reached as the result of a restorative process. Examples of restorative outcomes include restitution, community service, and any other programme or response designed to accomplish reparation of the victim and community, and reintegration of the victim and/or the offender. 3. "Restorative process" means any process in which the victim, the offender and/or any other individuals or community members affected by a crime participate actively together in the resolution of matters arising from the crime, often with the help of a fair and impartial third party. Examples of restorative processes include mediation, conferencing, and sentencing circles. 4. "Parties" means the victim, the offender and any other individuals or community members affected by a crime, who may be involved in a restorative justice programme. 5. "Facilitator" means a fair and impartial third party whose role is to facilitate the participation of victims and offenders in an encounter programme. II. Use of restorative justice programmes 6. Restorative justice programmes should be generally available at all stages of the criminal justice process. 7. Restorative processes should be used only with the free and voluntary consent of the parties. The parties should be able to withdraw such consent at any time during the process. Agreements should be arrived at voluntarily by the parties and contain only reasonable and proportionate obligations. 8. All parties should normally acknowledge the basic facts of a case as a basis for participation in a restorative process. Participation should not be used as evidence of admission of guilt in subsequent legal proceedings. 9. Obvious disparities with respect to factors such as power imbalances and the parties' age, maturity or intellectual capacity should be taken into consideration in referring a case to, and in conducting, a restorative process. Similarly, obvious threats to any of the parties' safety should also be considered in referring any case to, and in conducting, a restorative process. The views of the parties themselves about the suitability of restorative processes or outcomes should be given great deference in this consideration. 10. Where restorative processes and/or outcomes are not possible, criminal justice officials should do all they can to encourage responsibility of the offender toward the victim and affected communities, and reintegration of the victim and/or offender into the community. III. Operation of restorative justice programmes 11. Guidelines and standards should be established, with legislative authority when necessary, which govern the use of restorative justice programmes. Such guidelines and standards should address a. the conditions for the referral of cases to the restorative justice programme b. the handling of cases following a restorative process c. the qualifications, training and assessment of facilitators d. the administration of restorative justice programmes e. standards of competence and ethical rules governing operation of restorative justice programmes 12. Fundamental procedural safeguards should be applied to restorative justice programmes, and in particular to restorative processes. a. The parties should have the right to legal advice before and after the restorative process and, where necessary, to translation/interpretation. Minors should, in addition, have the right to parental assistance. b. Before agreeing to participate in restorative processes, the parties should be fully informed of their rights, the nature of the process and the possible consequences of their decision. c. Neither the victim nor the offender should be induced by unfair means to participate in restorative processes or outcomes. 13. Discussions in restorative processes should be confidential and should not be disclosed subsequently, except with the agreement of the parties. 14. Judicial discharges based on agreements arising out of restorative justice programmes should have the same status as judicial decisions or judgements and should preclude prosecution in respect of the same facts (ne bis in idem). 15. Where no agreement can be made between the parties the case should be referred back to the criminal justice authorities and a decision as to how to proceed should be taken without delay. Lack of agreement may not be used as justification for a more severe sentence in subsequent criminal justice proceedings. 16. Failure to implement an agreement made in the course of a restorative process should be referred back to the restorative programme or to the criminal justice authorities, and a decision as to how to proceed should be taken without delay. Failure to implement the agreement may not be used as justification for a more severe sentence in subsequent criminal justice proceedings. IV. Facilitators 17. Facilitators should be recruited from all sections of society and should generally possess good understanding of local cultures and communities. They should be able to demonstrate sound judgement and interpersonal skills necessary to restorative processes. 18. Facilitators should perform their duties in an impartial manner, based on the facts of the case and on the needs and wishes of the parties. They should always respect the dignity of the parties and ensure that the parties act with respect towards each other. 19. Facilitators should be responsible for providing a safe and appropriate environment for the restorative process. They should be sensitive to any vulnerability of the parties. 20. Facilitators should receive initial training before taking up facilitation duties, and should also receive in-service training. The training should aim at providing skills in conflict resolution, taking into account the particular needs of victims and offenders, and at providing basic knowledge of the criminal justice system, and at providing a thorough knowledge of the operation of the restorative programme in which they will do their work. V. Continuing development of restorative justice programmes 21. There should be regular consultation between criminal justice authorities and administrators of restorative justice programmes to develop a common understanding of restorative processes and outcomes, to increase the extent to which restorative programmes are used, and to explore ways in which restorative approaches might be incorporated into criminal justice practices. 22. Member States should promote research on, and evaluation of, restorative justice programmes to assess the extent to which they result in restorative outcomes, serve as an alternative to the criminal justice process, and provide positive outcomes for all parties. 23. Restorative justice processes may need to undergo change in concrete form over time. Therefore, Member States should encourage regular, rigorous evaluation and modification of such programmes in light of the above "Definitions." -- Leftlink - Australia's Broad Left Mailing List mailto:[EMAIL PROTECTED] http://www.alexia.net.au/~www/mhutton/index.html Sponsored by Melbourne's New International Bookshop Subscribe: mailto:[EMAIL PROTECTED]?Body=subscribe%20leftlink Unsubscribe: mailto:[EMAIL PROTECTED]?Body=unsubscribe%20leftlink
