Giustizia riparativa: i principi generali

What this is about

This article analyzes the general principles of the comprehensive regulation of restorative justice that Italy incorporated with Legislative Decree no. 150/2022, known as the Cartabia Reform. It starts from the previous lack of a common regulation, which had given rise to very different mediation practices across the territory, and reconstructs the legislative path that led to the reform. It examines the decree's definitions, especially those of restorative justice and restorative outcome, and organizes the principles into two groups: those concerning the participants and those concerning the procedure. It is addressed to legal scholars, practitioners of the criminal justice and prison systems, and those who work in restorative programs. It devotes the final part to the sentence enforcement phase and to the changes introduced in the penitentiary law.

Annotated table of contents

• 1. Introduzione (Introduction). Points to the historical absence of a shared definition and of common rules, and argues that restorative justice is a paradigm distinct from punitive justice, requiring work of cultural awareness-raising.
• 2. Il travagliato iter verso l'introduzione di una disciplina organica della giustizia riparativa (The troubled path toward a comprehensive regulation of restorative justice). Reviews the background, from Table 13 of the Estates General on Sentence Enforcement and enabling law no. 103/2017, to enabling law no. 134/2021 and the work of the commission chaired by Ceretti. Highlights that the reform opened access at any stage of the proceedings and without exclusions by type or seriousness of the offense.
• 3. Le previsioni di cui al d.lgs. n. 150/2022 (The provisions of Legislative Decree no. 150/2022). Analyzes the definitions in art. 42 and compares them with the 2002 UN basic principles. Discusses the legal nature of the institution, the broad notion of community, the choice of the term «mediator», the formula «person indicated as the author of the offense», and the requirements of reasonableness and proportionality of the restorative outcome.
• 4. I cc.dd. principi generali (The so-called general principles). Presents the structure of the chapter of the decree devoted to principles and general provisions, and anticipates the division of the principles into two groups.
• 4.1. I principi relativi ai soggetti (Principles relating to the participants). Develops the involvement of the community, the consensual and revocable nature of participation, with special rules for minors and other persons in situations of fragility, active and voluntary participation, equal consideration of the interests of the victim and of the person indicated as the author, and the equi-proximity of mediators.
• 4.2. I principi relativi al procedimento (Principles relating to the procedure). Deals with the guarantee of necessary time, confidentiality and professional secrecy, the right of access and information, referral of cases at the trial stage and the enforcement stage, the exclusion of adverse effects if the program fails, and the absence of any requirement to admit guilt.
• 5. La Giustizia riparativa nella fase esecutiva: le modifiche all'ordinamento penitenziario (Restorative justice in the enforcement phase: changes to the penitentiary system). Examines the three amendments to the penitentiary law (arts. 13, 15-bis, and 47) and their relationship with benefits and alternative measures. Insists that participating cannot become a burden for the convicted person.

Key ideas

• The Italian reform upholds the complementarity of restorative justice and criminal justice, although in some cases, such as tacit withdrawal of the complaint, the author sees a genuinely alternative effect to the proceedings.
• The legal definition is built on the program and the restorative outcome, and departs from the UN's through the breadth of the community, the use of «mediator», and the reference to the «person indicated as the author of the offense».
• The restorative outcome may be symbolic or material and its proportionality is measured against the offense in a broad sense, not against the criminal seriousness of the act.
• The mediator is equi-proximate: not equidistant like the judge, but equally close to the needs of each party.
• Confidentiality is the foundation of the program: the report to the judicial authority is limited to whether there was a program and its outcome, and what was said cannot be used as evidence.
• Access is a right of all interested persons, for any offense, and may be limited only in the face of a concrete danger to participants.
• Non-participation or failure of the program may not have adverse effects on the person indicated as the author.
• In sentence enforcement, restorative justice can help rebuild bonds with the community, reduce stigma, and recover a relational dignity.

Practical uses

• What principles organize restorative justice in the 2022 Italian law, and what international sources do they come from?
• How is consent given and revoked, including in the case of minors or persons with restricted capacity?
• What may the mediator report to the judicial authority without breaching confidentiality?
• Who may initiate or order the referral of a case to a restorative justice center during the proceedings and during enforcement of the sentence?
• How does the supervisory judiciary (magistratura di sorveglianza) weigh participation in a program when granting prison benefits?

Key terms

giustizia riparativa, Cartabia Reform, Legislative Decree 150/2022, restorative program, esito riparativo (restorative outcome), equiprossimità (equi-proximity), mediator, person indicated as the author of the offense, community, consent, confidentiality, right of access, non-specific victim (vittima aspecifica), complex offense, penitentiary system (ordinamento penitenziario)