Decreto legislativo 10 ottobre 2022, n. 150: attuazione della legge 27 settembre 2021, n. 134, per l'efficienza del processo penale e in materia di giustizia riparativa (riforma Cartabia)

What this is about

Legislative Decree 150/2022 implements the delegation granted by Law 134/2021 and, in 99 articles, reforms the Italian criminal code, code of criminal procedure, their implementing rules, and several special laws, with the aim of making criminal proceedings more efficient. Within that broad reform, its Title IV (arts. 42 to 67) establishes for the first time a comprehensive regulation of restorative justice in criminal matters. That part defines what is meant by a restorative program, victim, person indicated as the author of the offense, and restorative outcome, and sets principles such as voluntary participation, consent, confidentiality, and free access. It also regulates the rights and guarantees of participants, the conduct of the programs by mediators, their training and registration, and the public organization of the services through local centers and national and district conferences. Other provisions of the decree connect those programs with criminal proceedings and sentence enforcement, so that the judicial authority informs about them, refers cases, and assesses their results. It is addressed to judges, prosecutors, defense counsel, social-service and sentence-enforcement teams, and those who design or provide restorative justice services.

Annotated table of contents

• Titolo I, II, III, V e VI (Titles I, II, III, V, and VI; arts. 1-41 and 68-99). Amend the criminal code, the code of criminal procedure, and their implementing rules and special laws on matters such as substitute penalties, the complaint (querela) regime, notifications and remote proceedings, trial in absentia, appeals, enforcement of fines, transitional provisions, and repeals.
• Titolo IV, Capo I, Sezione I. Definizioni, principi e obiettivi (Definitions, principles, and objectives; arts. 42-43). Defines restorative justice, victim, person indicated as the author of the offense, family member, restorative outcome, services, and Restorative Justice Center. Lists the principles the programs must respect and establishes that access is free and may be limited only in the face of a concrete danger to participants.
• Capo I, Sezione II. Accesso ai programmi di giustizia riparativa (Access to restorative justice programs; arts. 44-45). Provides that programs are not excluded by the type or seriousness of the offense and that they can be accessed at any stage of the proceedings, during enforcement, after it, and, for offenses prosecutable only on private complaint, before the complaint is filed. Indicates who may participate, including community members, entities, and services.
• Capo I, Sezione III. Persone minori di età (Minors; art. 46). Orders that programs be adapted to the personality and best interests of children and adolescents, and that they be assigned mediators with specific training.
• Capo II, Sezione I. Disposizioni in materia di diritti dei partecipanti (Provisions on participants' rights; arts. 47-49). Regulates the right to receive information from the judicial authority, other services, and the mediation team. Establishes that consent is personal, free, informed, written, and revocable, with rules for minors, persons with restricted capacity, and entities, and guarantees free interpretation and translation.
• Capo II, Sezione II. Doveri e garanzie dei mediatori e dei partecipanti (Duties and guarantees of mediators and participants; arts. 50-52). Sets the duty of confidentiality and its exceptions, and prohibits using in criminal proceedings or enforcement what was said during the program. Protects the mediator's secrecy against testimony, seizure of documents, and interception, and exempts the mediator from the obligation to report except in specified cases.
• Capo III, Sezione I. Svolgimento dei programmi di giustizia riparativa (Conduct of restorative justice programs; arts. 53-56). Mentions mediation, reparative dialogue, and other dialogical programs, conducted by at least two mediators. Provides for preliminary interviews, meetings in suitable places, and symbolic or material restorative outcomes, with possible assistance from the defense.
• Capo III, Sezione II. Valutazione dell'autorità giudiziaria (Assessment by the judicial authority; arts. 57-58). Establishes that at the close the mediator sends a report to the judicial authority, which assesses the program and its outcome. Clarifies that not undertaking it, interrupting it, or failing to reach an agreement may not prejudice the person indicated as the author of the offense.
• Capo IV. Formazione dei mediatori esperti in programmi di giustizia riparativa e requisiti per l'esercizio dell'attività (Training of expert mediators in restorative justice programs and requirements to practice; arts. 59-60). Requires initial training of at least 240 hours, one third theoretical and two thirds practical, plus 100 hours of practice in a Center and 30 hours a year of continuing education, provided by the Centers and universities. Creates in the Ministry of Justice the list of expert mediators, registration on which is a requirement to practice.
• Capo V, Sezione I. Coordinamento dei servizi e livelli essenziali delle prestazioni (Coordination of services and essential levels of provision; arts. 61-62). Assigns national coordination to the Ministry of Justice with the support of a National Conference, which presents an annual report to Parliament. Provides that the essential and uniform levels of the services be agreed in the Unified Conference.
• Capo V, Sezione II. Centri di giustizia riparativa (Restorative Justice Centers; arts. 63-67). Provides that the Centers operate within local authorities, designated by a Local Conference in each court of appeal district, and that they may have their own staff, contracted staff, or staff from third-sector entities. Regulates the processing of personal data, ministerial oversight, and an annual fund of 4,438,524 euros.
• Provisions linking to the criminal code (art. 1). Adds participation in a program with a restorative outcome as a mitigating circumstance under art. 62, no. 6, as a case of tacit withdrawal of the complaint under art. 152, and as a condition linked to conditional suspension under art. 163 of the criminal code. When there are commitments of conduct, their effect depends on their being fulfilled.
• Provisions linking to criminal procedure (arts. 5, 7, 29, 41, and others). Incorporates art. 129-bis of the code of criminal procedure, which allows the judicial authority to refer the defendant and the victim to a Center at any stage, on its own initiative or on request, with suspension of up to 180 days in certain offenses prosecutable on private complaint. Adds the duty to inform the victim from first contact (art. 90-bis.1), notices about this possibility in numerous procedural acts, its inclusion in probation (art. 464-bis), and art. 45-ter of the implementing rules on the competent judge.
• Provisions linking to enforcement, minors, and justice of the peace (arts. 72, 78, 83, and 84). Introduces art. 15-bis of the penitentiary law to refer convicted and interned persons and to weigh the results in benefits and alternative measures, and an equivalent rule for convicted minors. Provides for the invitation to a program in juvenile criminal proceedings and refers to the Centers in proceedings before the justice of the peace.
• Arts. 92-93. Disposizioni transitorie in materia di giustizia riparativa (Transitional provisions on restorative justice). Entrust the Local Conference with surveying and evaluating existing services for the first opening of the Centers. Set the requirements for placing on the list those who already had training and experience in the field.

Key ideas

• Restorative justice is defined as a program in which the victim, the person indicated as the author of the offense, and other members of the community take part freely and actively, with the help of an impartial and trained mediator.
• Access is free, does not depend on the type or seriousness of the offense, and is possible at all stages, from before the complaint to after the sentence has been served.
• Participation requires personal, informed, written, and revocable consent, and information must be given in a language that is understandable and adapted to each person.
• Confidentiality is reinforced: what is said in the program cannot be used in the proceedings or in enforcement, and the mediator is protected against testimony, seizure, and interception.
• The restorative outcome may be symbolic or material and the judicial authority assesses it, but failure or lack of agreement may not prejudice the person indicated as the author of the offense.
• The system is public: Centers within local authorities, local and national conferences, essential levels of provision, and a dedicated fund.
• Mediator training is demanding and regulated, with theoretical hours, practical hours, and supervised practice, plus continuing education and an official list.
• The decree connects the programs with existing criminal institutions, such as the complaint, mitigating circumstances, probation, and prison benefits.

Practical uses

• What should a law that comprehensively regulates criminal restorative justice contain?
• How is the confidentiality of what happens in a restorative meeting guaranteed against criminal proceedings?
• At what points in the proceedings and in enforcement can a case be referred, and who decides on the referral?
• What training and authorization requirements can be demanded of mediators?
• How can a public network of restorative justice services be organized and financed?

Key terms

restorative justice, victim of crime, person indicated as the author of the offense, restorative outcome, mediation, reparative dialogue, consent, confidentiality, inadmissibility of evidence (inutilizzabilità), professional secrecy, judicial referral, Restorative Justice Centers, mediator training, tacit withdrawal of the complaint, Cartabia reform