• 1 M. Rossner, « Restorative Justice and Victims of Crime: Directions and Developments » in S. Walklat (...)
• 2 H. Zehr, The Little Book of Restorative Justice, New York City, Good Books, 1985.

2This hypothetical procedure on the other hand, is not the only possible path towards satisfaction and justice, nor is it necessarily the most suitable for the victims and the aggressors, and neither for society. Penal justice can be complemented or even directly substituted by alternative modes of understanding about the allocation of responsibility and the restoration of both collective and individual needs, including the need for justice. Under the term restorative justice (RJ), a wide range of alternatives tools and aids for traditional justice systems have been theorised, designed, and conducted in diverse social and legal contexts. It may be seen as a justice paradigm that targets both crimes or an incident’s causes and effects1. Its most basic tenets – as we will argue drawing from diverse definitions – refer to the voluntary nature of the process, all parties’ willingness to participate, the explicit acknowledgment of the harm and the motivation, the offender’s clear responsibility, and the focus on the victim’s reparation. Moreover, as argued by one of the early leading figures of restorative justice, Howard Zehr2, restorative justice must be seen as clearly different from traditional or retributive justice, as they understand differently not only the nature of the crime but also of justice. As in, retributive paradigms envision the crime as a violation of laws and justice as the imposition of a typified punishment, whereas restorative paradigms see the crime as a conflict between parties and justice as a procedure towards restoration and reconciliation.

• 3 Recommendation CM/Rec (2018)8 of the Committee of Ministers to member States concerning restorative (...)
• 4 M. Zernova, « Restorative justice in the Basque peace process: some experiments and their lessons » (...)
• 5 M. A. Walters, Hate Crime and Restorative Justice: Exploring Causes, Repairing Harm, Oxford, Oxford (...)
• 6 C. Serra, C. Garaizábal and L. Macaya (Coords.), Alianzas Rebeldes, Barcelona, Bellaterra Edicions.

3The ease with which we may imagine a hypothetical crime followed by a traditional or retributive/punitive process— speaks of the cultural imbrication of punishments as justice. Against this consolidation, recent initiatives during the last decades have pushed towards alternative and complementary forms of justice that draw from the growing tradition of restorative justice. Multinational institutions, such as European bodies, have argued for restorative tools and justice reforms3 – whereas different states have developed restorative institutions or schemes, drawing from either the Western tradition of restorative justice or alternative justice systems. High-profile cases, ranging from political terrorism4 to anti-LGBT physical attacks5, have been treated at least partially with restorative measures or approaches in different contexts. The path towards restoration as a wider understanding of justice has also been linked in some legal and social contexts to debates about responsibility and justice, as a whole6.

• 7 R. Macmillan, « Violence and the Life Course: The Consequences of Victimization for Personal and So (...)
• 8 R. Campbell, « Rape Survivors’ Experiences with the Legal and Medical Systems: Do Rape Victim Advoc (...)
• 9 A. Pemberton, P. Aarten and E. Mulder, « Beyond Retribution, Restoration and Procedural Justice: Th (...)
• 10 M. A. Walters, Hate Crime and Restorative Justice: Exploring Causes, Repairing Harm, Oxford, Oxford (...)
• 11 J. Chrysostome K. Kiyala, Child Soldiers and Restorative Justice. Participatory Action Research in (...)

4In this context, restorative justice’s most clear benefit - particularly from the victimological perspective - is the wide range of comparatively better outcomes for victims. After any victimisation experience, victims may easily lose trust in other people7 and particularly in public institutions8. This may be even more so if they have suffered poor treatment by police forces and other institutions9. Besides this point of contact between victims and justice operators, the limited agency and participation they may have during traditional penal procedures, may also limit their satisfaction. How justice is understood by victims, notwithstanding, may also be limited by how penal justice enforces and reproduces it – as victims may prefer education or alternative measures rather than sentences10 . As such, restorative justice, in broader understanding, must be seen as a potentially useful alternative or complement for justice procedures, as it may take into consideration additional dimensions of what it means to experience a justice procedure from the victim’s perspective. For instance, restorative procedures may provide better instances for reparation, accountability, and even a reduced recidivism11. What's more, a further critical benefit of restorative justice is that it can be a fruitful vantage point from which to interrogate societal understandings of justice and how public institutions work—as the contrast between the frequent practices of justice operators and what they could be like under alternative paradigms serves as a mirror against which to reflect.

• 12 K. Daly, “The limits of restorative justice”, in D. Sullivan and L. Tifft (eds.), Handbook of Resto (...)
• 13 A. Crawford & T. Newburn, Youth offending and restorative justice: implementing reform in youth jus (...)
• 14 J. Braithwaite, “Principles of restorative justice”, in von A. Hirsch, J. Roberts, A. E. Bottoms, K (...)
• 15 A. Von Hirsch, A. Ashworth & C. Shearing, “Specifying aims and limits for restorative justice: a ‘m (...)
• 16 D. Roche, Accountability and restorative justice”, Oxford, Clarendon Pres, 2003
• 17 R. Cario, “La justice restaurative en France”, Tiers, 17, 2016, pp. 139-154. https://doi.org/10.391 (...)
• 18 O. Jubany, “Restorative justice as an alternative to the punitive approach”, in O. Jubany (Ed.), Ju (...)

6As previously pointed out, there is no consensus in the academic world on the definition of restorative justice. According to criminologist Daly12, this is partly due to the lack of consensus on the concept itself. Some authors consider restorative justice as a process, others as an outcome13. Some authors conceive of it as a set of values14, while for others it only represents practices15. After all, some favour the inclusion of both dimensions16. The variety of conceptions of restorative justice originates in the diversity of its understanding in different historical and geographical contexts. While the beginnings of restorative justice can be linked to ancestral practices17, and to a Christian concept of justice grounded in forgiveness18, the debate surrounding the concept reached its peak in the Western world in the 1970s and the 1980s, as part of a movement to challenge traditional criminal justice.

• 19 M. Wenzel, T. Okimoto, N. Feather, M. Platow, “Retributive and Restorative Justice”, Law and Human (...)
• 20 M. Suzuki, H. Hayes, “Current debates over restorative justice: concept, definition and practice”, (...)
• 21 L. Walgrave, “Restorative Justice for Juveniles: Just a Technique or a Fully Fledged Alternative?”, (...)
• 22 J. Blad, “Institutionalizing restorative justice? Transforming criminal justice? A critical view on (...)

7Conventional criminal justice systems were seen as something based on retributive justice, defined as the repair of justice through unilateral imposition of punishment, whereas RJ means the repair of justice through reaffirming a shared value-consensus in a bilateral process19. Authors interested in restorative justice considered retributive justice to be ineffective20, thus, highlighting its counter-productive effects and its inability to restore social peace. Walgrave proposed the use of restorative justice as an alternative to juvenile criminal justice21, whilst others, such as Blad, proposed it as an alternative to criminal justice22. The definitions of restorative justice being developed at the time, were concerned with putting the victim back at the heart of the system, whose needs were considered to be invisible in the traditional criminal justice system.

• 23 A. Eglash, “Beyond Restitution: Creative Restitution”, in J. Hudson, and B. Galaway (eds.), Restitu (...)
• 24 K. Daly, “The Punishment Debate in Restorative Justice,” in J. Simon, and R. Sparks (eds.), The Sag (...)

8Eglash was one of the first to participate in the definition of restorative justice by elaborating three models of justice: restorative justice, focused on reparation; punitive justice, based on punishment; and distributive justice, centred on the treatment of offenders. Restorative justice was conceived to repair the damage, with a stance on restoring the harm caused23. Restitution is presented as an alternative to punishment and therapeutic treatment of offenders, as well as a means of simultaneously compensating crime victims and rehabilitating offenders. Restorative justice puts the emphasis on victims and their needs and gives them an important role to play in achieving justice and developing a rehabilitative program. As stated by Daly24, Eglash makes a strong contrast between the failure of older justice forms (retributive and distributive) and the superiority of a new type—the restorative one.

• 25 H. Zehr, Changing Lenses: A New Focus for Crime and Justice, Scottdale, PA: Herald Press, 1990
• 26 H. Zehr, The little book on restorative justice, Good Books, 2015, p. 2.
• 27 T. F. Marshall, Restorative Justice: An Overview, London, UK: Home Office, Research Development and (...)

9Zehr expanded the definition of restorative justice by focusing not only on material reparation of the damage caused by the commission of an offence, but also on psychological and symbolic reparation. The goal was to encourage offenders to understand the impact of their crimes on victims. Crime is viewed as a violation of relationship between victims and offenders25. According to him, restorative justice is, "an approach towards achieving justice that, to the best extent possible, involves all the stakeholders involved in a crime to address the harms, needs, and obligations arising from the crime by putting right and enabling healing to the greatest extent possible”26. For Marshall, the first political agenda of restorative justice is to change the response to crime. He defines restorative justice as, “a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future”27. The definition focuses on the involvement of parties themselves and the community in general in an active relation with statutory agencies.

• 28 G. Bazemore and L. Walgrave, "Restorative Juvenile Justice: In Search of Fundamentals and an Outlin (...)
• 29 V. Strimelle, « La justice restaurative : une innovation du pénal ? », Champ pénal/Penal field [Enl (...)
• 30 L. Walgrave, « La Justice restaurative : à la recherche d’une théorie et d’un programme », Criminol (...)

10With Bazemore and Walgrave, RJ is, “every action that is primary orientated toward doing justice by repairing the harm that has been caused by crime”28. The two authors placed an emphasis on reparation, seen as both support for the victim and symbolic compensation for the damage caused to society. According to Strimelle29, the State plays a very important role in this definition. It may promote the adoption of restorative justice when the parties are unwilling or unable to participate, or when they are unable to reach an agreement. It is then possible to combine criminal justice and restorative justice, by encouraging the development of informal measures within the traditional criminal justice system, but without questioning the foundations of the system itself30.

• 31 C. Béal, « Justice restaurative et justice pénale », Rue Descartes, 2018/1 (N° 93), p. 58-71. https (...)
• 32 J. Braithwaite, “Principles of Restorative Justice” in A. von Hirsch, J.V. Roberts, A.E. Bottoms, K (...)
• 33 A.C. Salsberg, « Racisme et médiation, l’action restauratrice d’ACOR SOS-Racisme », in La médiation (...)
• 34 J. Faget, «Médiation et violences conjugales», Champ pénal/Penal field [En ligne], Vol. I | 2004, m (...)
• 35 Salsberg, 2005, op.cit., p.2

11Each one of these definitions are therefore rooted in a challenge to criminal justice and its neglect of victims' needs. However, following Béal's approach31, we may question the articulation between criminal sanctions and restorative justice practices. Is restorative justice simply intended to supplement the repressive arsenal in order to introduce a restorative component and meet victims' expectations, or does it imply a profound transformation of criminal justice? Braithwaite is one of the authors for whom restorative justice constitutes a genuine alternative to criminal justice, rather than a complement to it. For him, “restorative justice is about struggling against injustice in the most restorative way we can manage. ... It aspires to offer practical guidance on how we can lead the good life as democratic citizens by struggling against injustice.”32 Crime is seen as an assault on social relations rather than on the State33. Hence it involves citizens in shaping the response, with the sanction embodying preparation for the future rather than punishment for a past act34 whilst at the same time, "rebuilding social links and restoring a sense of peace and justice between citizens"35.

• 36 R. Cario, « Justice restaurative : principes et promesses. », Les Cahiers Dynamiques, 59, 24-31. ht (...)
• 37 K. Daly, “What Is Restorative Justice? Fresh Answers to a Vexed Question”, Victims & Offenders, Vol (...)
• 38 Daly, 2016, p. 21
• 39 Daly, 2016, p. 29.

12Fifty years after the emergence of restorative justice in the academic and political spheres, the debate over its definition is still alive. For Cario, this is a vibrant sign that the concept is constantly evolving and adjusting36. Daly, on the other hand, is concerned that a common definition has not been adopted. This profusion of definitions leads, in her view, to confusion around the concept – at theoretical, empirical and political levels. The absence of a shared definition also prevents comparisons and assessments of restorative justice measures, which could help to improve practices37. In her opinion, restorative justice should above all, be a means of conceptualising judicial practices in concrete terms, before being aspirations or values38. Hence, she suggests the definition of restorative justice as, “a contemporary justice mechanism to address crime, disputes and bounded community conflict”. She conceives this mechanism as a meeting of affected individuals, facilitated by one or more impartial people39.

• 40 The Directive introduces an obligation for the Member States to inform victims as to the availabili (...)
• 41 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing (...)

13Within this context, the adoption of the Victims’ European Directive in 2012 plays a key role in spreading the concept of restorative justice in a concrete way by providing the first binding EU legislation on restorative justice as well as the first EU instrument mentioning restorative justice 40. The adoption of the following definition of restorative justice – included in the directive – is therefore a very important step in the spread of restorative justice throughout the European Union: «Any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of impartial third party”41. This definition includes dimensions that are reflected in the practices implemented in restorative justice, in which the notion of meeting, highlighted by Daly, is central.

• 42 I. E. Domínguez Ruiz, M. Roiha and O. Jubany, « Restorative Solutions for Anti-LGBT Victimisation E (...)

14Just what constitutes a crime may vary, depending on the legal context and societal views of harm and reparation; restorative justice is not free of a conflicting and diverse history both as a concept and as a practice. What is considered restorative may vary, for instance, depending on whether the role of direct mediation is perceived as part of restorative approaches. Also, the role of pre-existing forms of established mediation, such as in labour conflicts, may affect how justice operators think of about restorative justice42. As discussed in previous sections, restorative justice may be conceived of and practiced from a diverse range of standpoints and approaches. Such conceptual diversity and divergence are but a consequence of the multiplicity of approaches that may be thought of under the idea of restoration.

• 43 C. B. N. Gade, « “Restorative Justice”: History of the Term’s International and Danish Use », in A. (...)
• 44 Ibidem, p. 27-40. J. C. K. Kiyala, Child Soldiers and Restorative Justice. Participatory Action Res (...)
• 45 H. Zehr, The Little Book of Restorative Justice, op. cit.

15Following Christian Gade, restorative justice in its contemporary form, “first appeared in a Christian context”, ranging from a series of mid-nineteenth to early twentieth century, “without any explanation of its meanings”, and without a clear “connection between these texts and the later restorative justice literature in the second half of the twentieth century”43. Consequently, the widest consensus among scholars is that the contemporary tradition of restorative justice, both practice and theoretical thought, is a 1970s development, particularly drawing from the works of Howard Zehr and Albert Eglash44. The aforementioned distinction by Howard Zehr, between retributive and restorative justice in a seminal 1985 article, is frequently held as one of the key founding or defining moments45. This sets the understanding of retributive justice: as that which sees a crime as a violation against the state, with a clear focus on blame or guilt. This implies a series of opposition relationships under the law and the imposition of a punishment in order to balance the society and to reduce recidivism, with a justice system based on notions of intent and due process. Restorative justice, on the other hand, is characterized by Zehr, as one that sees crimes as conflicts between parties that are started or created by an offender – a process defined by negotiation and dialogue, restoration and reconciliation as key goals – and with a justice system that is based on relationships.

• 46 A. Nylund, K. Ervasti and L. Adrian (Eds.) Nordic Mediation Research, op. cit.
• 47 J. Braithwaite, « Restorative Justice and De-Professionalization », The Good Society, 13, 1, 2004, (...)

16Even though restorative justice’s contrast to retributive justice may appear as a novel idea or approach, most lines of thought and practice have at least hinted towards a connection to indigenous and community-based forms of justice that inform restorative practices. Ideas such as those of community justice, transitional justice, peacemaking or peacebuilding, and so on, have informed views of restorative justice as a lingering possibility always present for which a society’s acceptance and awareness make the key difference46. Then again, the aforementioned basic tenets of contemporary restorative justice draw from a clearly Western, geography- and time-specific context and tradition, which involves specific circumstances such as legal systems and societal awareness, as well as cultural worldviews that affect how a specific society understood procedural or restorative justice47.

• 49 M. Suzuki, H. Hayes, op.cit., p.5.
• 50 M. Suzuki, H. Hayes, op.cit., p.7.

18The multitude of definitions of restorative justice is matched by a profusion of methods, and approaches for implementing it. It is however, generally agreed that there are three main practices: victim-offender mediation (VOM); conferencing; and circle process49. Although they are implemented in different contexts and countries, these practices share essential components of restorative justice, such as dialogue-driven process50.

• 51 B.Deymié, « Justice restaurative : le dialogue avant la peine. », Revue Projet, 366, 7984. https:// (...)

20The second main practice, conferencing, was first developed in New Zealand in 1990. The purpose is to involve, not only victims and offenders, but also family members, friends and even members of the community, to support victims and offenders. The conference, thus, makes it possible to consider the characteristics of the support that the family or social environment is likely to provide to the agreements made between the parties concerned, with a view to helping them to regain their place within the community. An assessment of this programme shows that most of the victims who took part, felt that the agreement reached was fair. More than 80% of offenders honoured their commitments and most of them felt that this method of conflict resolution had helped them to understand the impact of their actions51. Initially implemented in New Zeeland and Australia for young offenders, this method was also developed in some European countries.

• 52 A. Garapon, Justice sans châtiment, Les commissions Vérité-Réconciliation, Odile Jacob,2009, p. 285
• 53 A. Garapon, op.cit., p. 289.
• 54 R. Cario, 2014. op.cit., p.13.

22The principles of restorative justice have also been applied in cases of mass victimisation, for example, in the context of the Truth and Reconciliation Commission set up in South Africa at the end of apartheid. As Garapon points out, the merit of the Truth and Reconciliation Commission, is that it prioritised the dignity of the victims over the punishment of the guilty52. However, some have criticised it for depriving them of the right to lodge a complaint and have the offender punished. On the other hand, the Commission's objective was in line with that of restorative justice: its aim was not to punish, but to restore people's ability to live together, by helping to rebuild a fair political order53. According to Cario, the official declaration of the acts, which often constitute crimes against humanity, the naming of the offenders and/or their own admission, and the acknowledgement of the victims constitute a powerful means of national reconciliation54. Other methods are also used, such as shuttle mediation - occurring when parties in separate rooms speak only through an intermediary - proxy-victims, proxy offenders or indirect mediations.

• 55 H. Astor, “Swimming against the tide: Keeping violent men out of mediation”, In J. Stubbs (Ed.), Wo (...)
• 56 S. Hooper, R. Busch, "Domestic Violence and Restorative Justice Initiatives: The Risks of a New Pan (...)

23However, the limits of such practices are currently being debated in academic circles. There are authors who warn that the application of restorative justice to certain offences is inappropriate, highlighting the dangers that the method may present for victims. This is the case, for example, with domestic violence. For instance, in Spain direct mediation is strictly forbidden for domestic and gender-based violence cases. Confrontation between the victim and the offender is only possible if the victim is not endangered. Some studies have pointed out that the power imbalances and dynamics of control which characterise many domestic violence relationships suggest that, in most instances, the victims of violence do not have the capacity to negotiate freely and fairly with their abusers55. For Hooper and Bush, the process of restorative justice should only be attempted in rare cases, and then only after specific protocols are followed to ensure a victim's free and informed consent and safety56.

• 57 R. Cario, B.  Sayous, “Restorative Justice in France: Some Reflections on Its Current Development b (...)
• 58 Dominguez-Ruiz, “Restorative justice and anti-lgbt hate crime: a view from the professional involve (...)

24Compliance with a protocol is important in the restorative justice process, mainly to avoid to re-victimizing the participants. Defined specifically for each restorative measure and developed with professionals in the field and validated by trained facilitators, protocols are the best guarantees against re-victimisation of participants57. However, it is also crucial for professionals to be attentive to the protagonists’ expectations. In this context, it is of tremendous importance to pay attention to the timing of communication, specific measures and even to avoid the promotion of direct meeting with the offender when needed. This requires from the professionals, as argued by Dominguez Ruiz, an adequate training and resources that allow for accommodating diverse needs and timings⁵⁸.

• 59 A. Darsonville, « « Dissiper les ténèbres », une proposition de justice restaurative », Revue du dr (...)

26No article is devoted to France in this issue. However, we thought it would be interesting to present an overview of the implementation of restorative justice in this country. Although in France, restorative justice was enacted by the law on August 15, 2014, and implemented by the ministerial circular of March 15, 2017 - this approach is still largely unknown - both by the public, and by the judicial system itself, even if restorative justice has been in the spotlight recently in the country. A film devoted to restorative justice was met with unexpected public success, which has shed light on the practices developed, to a wider public. Above all, the Independent Commission on sexual abuse in the Church (Commission indépendante sur les abus sexuels dans l’Église, CIASE) has focused its recommendations on reparation; offering a valuable tool for rethinking the construction of RJ59.

• 60 Deymié, op.cit., 2018, p. 79.

27Restorative measures have long been absent from the French legal framework, even though they have been used in several Anglo-Saxon and European countries, for over thirty years. According to some authors, this absence is because French law already includes the interests of the victim in criminal proceedings, unlike Anglo-Saxon law60.

• 61 N. Amadio, « La diffusion de la justice restaurative en France : évolutions de la figure de l’auteu (...)
• 62 S. Abdellaoui, N. Amadio, P. Colin, Freins et leviers de la justice restauratrice en France, rappor (...)
• 63  N. Amadio et R. Sarg, « Société civile et justice restaurative », Revue des sciences sociales [En (...)

28This may also be since, RJ finds its place more "naturally" in the legal culture of the common law, where practices based on communicative devices such as negotiation or mediation are commonplace in sentencing. Here, negotiation practices are not the preserve of peripheral actors in the judicial system, but are part of the judicial cultures that have seen the development of RJ.61 It is also emphasized that RJ has developed more easily in the European Union in countries where governance is more federal than centralized - Germany, Spain, Belgium, etc. - which require negotiation practices that are deeply rooted in judicial cultures. In France, on the other hand, the system is based on vertical, highly centralized State power. Finally, one of the essential aspects of the restorative approach is to include at least three parties in a dialogue—namely the victim, the perpetrator and the "community", i.e. a collective of people who can be considered to have been collectively affected by the criminal act. In France, however, there is a certain reluctance to introduce the notion of community into the law. For many professionals in the criminal justice system, the State must remain the only guarantor of a fair and equitable solution in the face of the interests of the parties and civil society.62 Introducing community into the restorative approach would challenge the independence of justice by competing and/or incompetent groups, as well as the republican pact founded on universalism. Here, community is assimilated to communitarianism.63

• 64 See for example R. Cario, Justice restaurative, principes et promesses, 2005, La justice restaurati (...)

29Nonetheless, some authors argue that restorative justice is part of a judicial evolution. For instance, practices such as negotiation, conciliation, and mediation have tended to develop since the mid-1990s in France in civil, social and commercial law. In addition, before the adoption of the law, an academic debate occurred, thanks to the work of, among others, the criminologist Robert Cario who has written extensively on this issue⁶⁴ and had participated in one of the first experimentation of restorative justice in France in 2010, before the adoption of the 2014 law introducing the practice of restorative justice. Meetings between prisoners and victims were organised at the Poissy prison. During these meetings, a group of prisoners and a group of people who have been victims of an offence who are not involved in the same case, met. The aim of these meetings was to enable the participants to discuss the impact of the offence on their respective lives.

• 65 In addition to coordinating training in restorative justice with the France-Victimes association, t (...)

30The second step of the implementation of a restorative approach in France was the creation in 2013 of the French Institute for Restorative Justice (IFJR) bringing together researchers and practitioners with expertise in restorative justice; working in partnership with professionals in the criminal justice system. The aim of the institute is, among others, to promote the dissemination of RJ practices by providing training and awareness-raising activities65.

• 66 LOI n° 2014-896 du 15 août 2014 relative à l'individualisation des peines et renforçant l'efficacit (...)
• 67 Circulaire n° JUST1708302C du 15mars 2017 on the implementation of restorative justice applicable i (...)
• 68 Ordonnance n°2019-950 du 11 septembre 2019 establishing the legislative part of the juvenile crimin (...)

31It was after a consensus conference on the prevention of recidivism, that the law of 15 August 2014 regarding the individualization of sentences was drawn up66, that the implementation procedures were specified in the 2017 circular67. Restorative justice has also been introduced for juveniles and has been included in the order of 11 September 2019 (Juvenile Criminal Justice Code)68.

• 69 N. Amadio, R. Sarg, op.cit., 13.

33Therefore, as seen before, there is a reluctance to refer to the concept of community in France. The choice of restorative methods mostly used since the adoption of the 2014 law, perfectly illustrates this reluctance. It is mainly: sentenced-victim meetings and restorative mediation – two processes based on the involvement of mediators generally from the judicial world, that are used the most. Very few measures involve other participants, such as, family members or representatives of political, associative or religious institutions. These practices therefore fall within the post-sentence sphere and are implemented by actors from the judicial institution and justice professionals.69

• 70 N. Amadio, R. Sarg, op.cit.

34Nevertheless, there is a small but emerging role for actors from civil society, who are not identified as members of a community. According to Amadio and Sarg, civil society is introduced in the dissemination of restorative justice practices into the French penal system under the figure of a third-party facilitator. This adaptation contributes to make restorative practices complementary to the traditional judicial system.70

• 71 Cario, op.cit.,2014.

35In France, restorative justice is seen as an appropriate response to the crisis facing the criminal justice system, whereby complementing existing measures. It is presented as a set of measures to help offenders reintegrate into society and to combat crime more effectively, because offenders who have taken part in this type of measure are less likely to re-offend71. The main measures developed are restorative mediations, understood as a process of dialogue, which may consist of a face-to-face meeting - or a letter or video - in the presence of a facilitator, amongst the victim of an offence and the person who has committed it. This process of dialogue, which takes place after appropriate preparation, respects the pace of each person, independently of the criminal proceedings.

• 72 Mbanzoulou Paul, Cario robert, Bouchard Jean-Pierre, La dimension psychologique de la justice resta (...)
• 73 M. Depay, « La justice restaurative, un outil de paix pour la justice pénale », Village de la justi (...)

36According to Mbanzoulou & al., the space for dialogue provided by restorative justice measures fills a significant gap in the French criminal justice system72. The restorative paradigm proposes a common denominator based on harm, needs and reparation and “puts people back at the heart of the trial”73. One of the original aspects of it is the creation of partnerships between victim support associations and criminal administration services or the judicial protection of young people to cross the views of professionals.

• 74 Institut Français de Justice Restaurative, Enquête nationale auprès des participants auteurs et vic (...)
• 75 Even in the case of minor offences, these involve serious offences, such as burglary, intentional v (...)
• 76 Institut Français de justice Restaurative, Enquête nationale sur la justice restaurative, 2021, p.1 (...)
• 77 L. Dumoulin, C. Vigour, « On a soif d’idéal ! Des attentes à la hauteur des critiques des citoyens. (...)

37Surveys of users have highlighted their satisfaction at having taken part in restorative justice measures. Victims and perpetrators alike, consider that the process leads to a different way of "looking at themselves", not as victims or perpetrators, but as people who cannot be reduced to an act committed or suffered74. These results are particularly remarkable – as methods are applied to serious offences; with a high representation of sexual violence (rape and incest in particular) and domestic violence, as well as armed robbery75. And it is for these categories of incidents that most requests come in for76. By contrast, the outcome of an evaluation of perceptions of the criminal justice system carried out at the same period among litigants, highlighted their great dissatisfaction and disappointed hopes77.

• 78 D. Griveaud, La justice restaurative en France : sociologie politique d’un « supplément d’âme « à l (...)

38Measures also appear to have a positive impact on criminal justice institutions. This is shown by the results of a recent study showing how expectations in terms of listening, dialogue and empathy, progressively transformed the criminal institution. According to the author, the French State tries, with restorative justice, to remotivate its employees by offering them a new project, a new tool, but above all an extra “touch of soul”, to their activity in a context of rationalization and managerialization of judicial activity perceived as burdensome⁷⁸.

• 79 However, there has been a significant increase in the adoption of RJ programmes, from six in 2015 t (...)
• 80 Since 2011, more than 150 training courses have been given to professionals working in victim suppo (...)
• 81 According to the IFJR 2020 report, there are only 4 geographical branches of this institute : in th (...)
• 82 Enquête nationale sur la justice restaurative, 2021, p.22, http://www.justicerestaurative.org/wp-co (...)
• 83 Cario, Sayous, op.cit., p. 129.

39Nearly ten years after its introduction in the French law, the concept of restorative justice is gradually becoming less controversial and is being mobilized for a large number of offences. However, despite an increasing number of restorative justice programmes and measures, the use of measures remains low, mainly due to a lack of resources and a lack of awareness, including amongst the judiciary. It seems necessary to significantly increase awareness-raising trainings among the professionals potentially concerned, so that these practices can be more widely implemented throughout France79. Although the training on offer has been considerably improved in recent years80, the current number of geographical departments trained in it is insufficient and does not adequately cover the entire country81. As a result, the 39 measures implemented in 2021, were concentrated in no more than 17 French departments82. In particular, juvenile justice personnel, police offices and magistrates remain insufficiently trained83.

• 84 The Catholic University of Lyon and the CNAM for example, offers a university certificate in Restor (...)
• 85 The French Ministry of Education has published a guide entitled "Pour une justice en milieu scolair (...)
• 86 Deynié, op.cit., p. 11.

40Furthermore, it is still rarely taught at in university; although, it would be essential for its dissemination if it were to be incorporated into law students' courses84. Lastly, its spheres of activity are still mainly focused on criminal justice, even though a number of initiatives are being developed in other areas, such as conflict resolution in schools85. In some European countries, though, it is being used to settle disputes arising in different contexts. This is the case, for example, in environmental justice, neighbourhood or labour disputes and restorative cities. This is illustrated by the articles published in this issue. Extending the scope of restorative justice beyond the criminal sphere in France, would make it possible to "aim for social harmony by breaking down walls and giving improbable dialogues a chance again"86.

• 87 http://data.europa.eu/eli/dir/2012/29/oj
• 88 L. Ayora and C. Casado, La mediació penal en Catalunya en el ámbito de adultos y menores, Barcelona (...)
• 89 E. Giménez-Salinas and A. C. Rodríguez, « Justícia restaurativa. Una resposta al conflicte més huma (...)

43The Spanish case is similar to that of France and other EU countries in that an EU-wide regulation, namely the Victims’ Rights Directive87, that has been transposed with unequal development, and with relevant ramifications. Broadly speaking, the Spanish legal context displays a clear lack of legal regulation regarding restorative justice, as such, the discretion of regional administrations or judges play a significant role88. The Spanish legal case reproduces a clear paradox, pointed out by authors like Giménez-Salinas and Rodríguez89, as the transposition of the EU Directive and other legislation, such as the Criminal Code, reference mediation and restorative justice without any specific regulation on how to carry it out. Furthermore, the Spanish case, like other countries, allows to reflect about the potential role of restoration, either as a gradual evolution of traditional penal system or its supplement – or as a clear revolution regarding how we understand and tackle crimes and conflicts.

• 90 N. Christie, « Conflicts as property », The British Journal of Criminology, Vol.17(1), pp. 1-15.
• 91 W. R. Wood and M. Suzuiki, « Are Conflicts Property? Re-Examining the Ownership in Restorative Just (...)

45The diversity of authorities and institutions with capacities to deal with conflicts and crimes in Spain, i.e., the Spanish state and the different regions or Autonomous Communities, advise on an additional debate that has been a central one among restorative justice experts: who is the owner of the conflict or crime. Drawing from Nils Christie’s reflection on whose property conflicts are90—several restorative practitioners and other experts have long considered how existing or potential practices, such as those included in said criminal or administrative laws, affect existing balances of ownership between the parties involved in any conflict91. As such, dictating which specific policies and measures are legislated, passed, and enacted affects the balance between expectations and types of justice, such as Eglash’s three-part division of restorative justice, punitive justice, and distributive justice. Rather than considering that any form of restorative-focused or themed-legislation policy is necessarily one that puts the victim at the heart of the system and of the conflict’s ownership, it is mandatory to analyse their specificities and consequences.

• 92 Constitución Española, art. 25.2. https://www.boe.es/eli/es/c/1978/12/27/(1)/con
• 93 Código Penal, art. 21.5. https://www.boe.es/eli/es/lo/1995/11/23/10/con
• 94 Ley Orgánica 1/2015, de 30 de marzo, por la que se modifica la Ley Orgánica 10/1995, de 23 de novie (...)
• 95 Ley de Enjuiciamiento Criminal, art. 100, art. 116. https://www.boe.es/eli/es/rd/1882/09/14/(1)/con(...)
• 96 Ley 4/2015, de 27 de abril, del Estatuto de la víctima del delito. https://www.boe.es/eli/es/l/2015 (...)
• 97 Ley 4/2015, de 27 de abril, del Estatuto de la víctima del delito, art. 3, art. 5. https://www.boe. (...)
• 98 Ley 4/2015, de 27 de abril, del Estatuto de la víctima del delito, art. 15. https://www.boe.es/eli/ (...)

46When focussing on the Spanish-wide basis for restorative justice, it could be easily argued that the Spanish Constitution recognises the prison system and other security measures as oriented towards re-education and social insertion92. Regarding the Criminal Code, there is no explicit reference as of 2023 to restorative justice, but the legal text clearly discusses the role of reparation as part of penal responsibility reduction93. The transposition of the EU’s Victim’s Rights Directive94 added several possibilities for restorative justice in the case of minor criminal acts: it added the first reference to criminal mediation for adults, it modified the conditions for sentence suspension, and so on. However, most measures added or changed by this transposition refers to the offender’s rights and alternative measures, rather than restoration as a practice, and as such they are of limited scope. Similarly, the Criminal Procedure Law, also modified by the same transposition, has had since 2015, the right to initiative civil cases for reparation, compensation, or restitution, that are not started nor ended by the criminal case95. Reparation is not defined by this law, nor is it further defined by the main Spanish law for victims’ rights, the Victims’ Statue96. This law defines the right to restorative justice services during and after criminal proceedings, independent from their outcome, as well as the right to receive information about such services97. This law forbids mediation and conciliation for cases of gender-based and sexual violence, as it also defines a series of requirements that all restorative justice services must follow98: the offender must acknowledge both the facts and their responsibility, the victim must give their consent after receiving impartial and full knowledge about the procedure, the offender must also give their consent; the procedure must not entail a safety risk for the victim, and it must not entail the risk of secondary victimisation.

• 99 Ley 5/2012, de 6 de julio, de mediación en asuntos civiles y mercantiles. https://www.boe.es/eli/es (...)

47Besides this focus on crimes, there is also legislation on private mediation, which includes instances and possibilities for restorative justice in private matters99. This legislation, which focuses on private, civil, and mercantile cases, is explicitly barred from criminal cases, mediation with public administrations, labour mediation, and consumer rights issue. It has been applied, however, to community-based conflicts that do not enter the realm of criminal legislation. This law has defined guiding principles and rules for mediation in Spain - following international standards and consensus, such as voluntariness, equality and impartiality, neutrality, and confidentiality. This law also defined the specific training that mediators must have before being able to conduct mediation, and this training may include restorative justice as part of its contents. However, this path is limited to a specific set of cases that do not enter other realms, such as those of criminal or labour mediation, which have their own legislations and requirements. This legislation, as well as the current and recent practices of private, criminal, and labour mediation in Spain, must be understood against the background of a wider cultural shift, albeit a timid one, towards mediation. EU legislation has had a crucial role in this evolution, as Spanish legislation and practices have converged with those of most EU countries, regarding mediation standards and values. Despite this, advances in mediation legislation and practice, and in the cultural role and expectations of mediation as conflict resolution, must be weighed against the debate on whether they act as complements or alternatives to traditional justice, without any significant change.

• 100 J. M. Tamarit, « La Recomendación (2018) 8 del Consejo de Europa sobre justicia restaurativa en asu (...)

48Consequently, it can be argued that the Spanish legal system, as a whole, lacks a specific law on restorative justice that establishes the scopes and procedures for its application, under an already existing right to restorative justice services for victims of crime100. This legislation could include the conditions under which restorative justice may be considered as an option: confidentiality (already a principle in private mediation under Spanish law), the effects of restorative procedures within existing or future legal proceedings, the application of restorative measures in prison and education settings, and so on. Such a law could necessarily include a wide range of existing laws, such as the Criminal Code, the Criminal Procedure Law, and more. However, it would also need to take into account the necessary cultural shift from a series of punitive expectations to those of restoration and conflict resolution. Practitioners in a wide range of settings, have already circumvented this lack of specific law, and they have been applying a combination of agreed-upon principles, practices, and strategies. As such, the lack of a specific law does not bar the use of restorative practices, but it does limit its scope.

• 101 Constitución Española, art. 25.3. https://www.boe.es/eli/es/c/1978/12/27/(1)/con
• 102 https://justicia.gencat.cat/ca/ambits/mediacio/mediacio_penal/la_mediacio_penal/
• 103 https://www.justizia.eus/servicio-de-justicia-restaurativa/webjus00-contentgen/es/
• 104 https://www.navarra.es/es/tramites/on/-/line/Asesoramiento-sobre-mediacion-intrajudicial

49As for the regional and autonomous Parliaments and their legislation prerogative, the Spanish Constitution bars civil administrations from imprisonment sanctions101, as such, their powers are limited to civil matters, such as economic sanctions or fines and administrative procedures. However, various regional governments have created restorative justice services that bridge the gap between criminal matters and other conflicts. Governments such as those of Catalonia102, the Basque Country103, and Navarre104 have been leading the restorative approach in Spain. Their regional restorative justice services work with offenders and victims of crimes, with the support or referral of prosecutors and judges, and with training in both legal matters and psychological support. This is a consequence of the fact that whereas criminal justice legislation is a Spanish-wide prerogative - the administration of justice, alternative criminal measures, victim support, and in some cases prison systems - are prerogatives of the regional governments. Restorative justice services in these three regional governments are both internal to the government’s public administration, and as such they are part of the justice administration, and externalised, as they are managed by specialised NGOs or organisations after a process of public bidding.

• 105 https://justicia.gencat.cat/web/.content/home/ambits/mesures_penals_alternativ/programa-marc-justic (...)

50Among these regions we may find different models regarding legislation and how restorative justice is understood and practiced. The Catalan restorative justice service, for instance, is guided by a framework or programme105 established in 2021 by the Directorate-General of Criminal Execution in the Community and Juvenile Justice. This framework summarised the legal basis for the application of restorative justice in Catalonia, and explains how they work. For instance, it established that restorative justice cases may be started ex officio by judges or tribunals, but also by the request of prosecutors, direct or indirect victims, offenders or accused parties, their lawyers, police forces, prison system professionals, or any other institution or organisation that works with the parties involved. This framework established restorative procedures as a possibility during different moments of the criminal proceedings, and it also includes a wide range of possible cases; besides the legal limitation of mediation for gender-based and sexual violence cases. It also defined the principles that guide the restorative justice service in Catalonia: free of charge, voluntary participation, confidentiality, flexibility, bilateral nature of the procedures, and the mediator’s neutrality. As such, the Catalan case shows how a lack of specific legislation may be filled by a functional or internal framework as the wider legal framework serves as a basis for the application of the right to restorative justice.

• 106 Ley Foral 4/2023, de 9 de marzo, de justicia restaurativa, mediación y prácticas restaurativas comu (...)

51The restorative justice service in Navarre, on the other hand, has followed a different path— and in 2023 Navarre became the first Spanish region with a law focused on restorative justice, mediation, and community-based restorative practices106. This law established similar guiding principles for restorative justice procedures (voluntariness, equality, confidentiality, impartiality and neutrality, mutual respect, flexibility, technical knowledge), as such, it also adapts a series of international consensus and recommendations in a local context. This law focuses on the establishment of Navarre’s restorative justice service as a public service with an application for all cases, started in Navarre. Furthermore, this recent law differentiates a series of principals, rights, and procedures for their restorative justice service, mediation and its promotion, and community-based restorative practices. This distinction is significant - as the law defines a series of community-based restorative practices outside of justice system’s procedures - with conflict resolution as its goal for a wide range of settings: families, neighbourhoods, education, health, consumers, organisations, and prison systems.