Guía de Formación en Alternativas Penales II: Justicia Restaurativa

What this is about

This guide is part of a series of five training publications on penal alternatives in Brazil, drawn from the Manual de Gestão para as Alternativas Penais of the National Council of Justice. It presents restorative justice as a cross-cutting approach that should run through all modalities of penal alternatives, and not only through specific programs. It is addressed to technical teams, the Integrated Units for Penal Alternatives, and those who belong to the criminal justice system and civil society. It combines a definition of the approach, its principles, and its legal framework with a description of methodologies such as circles, family group conferences, and mediation among victim, offender, and community. It closes with the working phases of a program and a procedural flow that runs from judicial referral to follow-up of the agreement.

Annotated table of contents

• Preface. Places the publication within the Fazendo Justiça program, promoted by the National Council of Justice, the Ministry of Justice and Public Security, and UNDP, and explains its translation into English and Spanish.
• Presentation. Describes the structural problems of the Brazilian prison system and lists the five guides in the series, with their topics.
• Introduction. Situates this Guide II with respect to the others and announces that it will offer elements, practices, flows, and instruments for implementing restorative practices in the Units.
• 1. Restorative Justice as a cross-cutting axis of the policy of penal alternatives in Brazil. Starts from the country's incarceration level and warns of the risk that the State might use these practices to expand penal control. Proposes incorporating the approach into the whole policy and, where possible, creating specific programs with their own teams.
• 2. Restorative justice: what is it and when can it be used? Reviews the origin of the approach in the United States and Canada, its definition under UN Resolution 2002/12, and the distinction between crime and conflict. Mentions Resolution No. 225/2016 of the National Council of Justice and recommends Kay Pranis's circle handbook.
• 3. Characteristics or principles of a restorative practice. Describes one by one principles such as co-responsibility, reparation of harm, voluntariness, impartiality, confidentiality, free access, and speed.
• 4. Legal aspects for applying restorative practices. Reviews Law No. 9.099/95, UN Resolution 2002/12, and Resolution 225/2016. Lists the conditions the justice system must consider to join a program, such as early referral and respect for the agreement reached by the parties.
• 5. Methodologies of restorative practices. Presents the roles of the facilitator, the victim, the offender, and the community, and describes circles, family group conferences, and mediation among the victim, the offender, and the community, with their differences in structure.
• 6. Phases of development of restorative practices in the Integrated Units for Penal Alternatives. Runs through the work of a program in thirteen steps: referral, reception, preparation, preliminary meeting, meeting, incidents, agreement, referrals to the network, return to the Judiciary, follow-up, information management, and supervision.
• 7. Flow of procedures. Summarizes in a numbered diagram the stages shared by the Judiciary, the program, and the network, from case selection to approval and follow-up of the agreement.
• References. Gathers the works and rules cited throughout the guide.
• Readings to support this guide. Proposes complementary bibliography, mostly Brazilian, on restorative justice, mediation, and penal alternatives.

Key ideas

• Restorative justice is proposed as a cross-cutting axis of the whole policy of penal alternatives and not only as an isolated program.
• Its incorporation into the criminal justice system calls for caution, so that it does not end up being used as a tool for expanding penal control.
• Crime is a classification that the State assigns to conduct, whereas conflict arises from the interaction between people and can be transformed.
• The people involved are the protagonists; the State must provide the appropriate setting and guarantee their rights.
• Restorative services should preferably operate outside the judicial sphere and in coordination with it, through cooperation agreements and defined flows.
• Preliminary meetings with each party are indispensable, and where there is a history of violence or power imbalance it must be assessed whether the practice is viable or alternatives without a direct meeting should be sought.
• The Judiciary should approve the agreement without adding conditions, unless it violates fundamental human rights.
• When there is no agreement, the report to the court should be brief and should not reveal what was discussed or the reasons.

Practical uses

• How is the referral of cases organized between the Judiciary and a restorative justice program?
• What must be verified in the preliminary meetings before bringing the parties together?
• What distinguishes a circle, a family group conference, and a mediation among the victim, the offender, and the community?
• What should a restorative agreement contain, and how is it followed up?
• What information may be sent to the court when the procedure ends without an agreement?

Key terms

restorative justice, penal alternatives, cross-cutting approach, Integrated Units for Penal Alternatives, circles, family group conferences, victim-offender-community mediation, preliminary meeting, facilitation, confidentiality, voluntariness, cooperation agreement, approval of the agreement, collaborative network, follow-up