• 1 OSCE, Hate Crime Laws: A Practical Guide, 2nd ed., Warsaw, OSCE, 2022, p. 15.
• 2 See ibidem: «In order to qualify as such, hate crimes need to target one or more members of, or the (...)
• 3 See L. Goisis, Crimini d’odio. Discriminazioni e giustizia penale, Napoli, Jovene, 2019, p. 21, who (...)

1In light of the commonly accepted definition, a hate crime is a criminal offence qualified by the presence of a strong subjective connotation on the part of the perpetrator: «Hate crimes always comprise two elements: a criminal offence committed with a bias motive»1. What makes hate crime different from other crimes is not the form taken by the conduct - which may be a threat, damage, personal injury, murder, etc. - but the particular intention that drives the individual to act. The intention of the perpetrator is not simply to commit the offence and thus to harm the good that that particular criminal provision aims to protect in a general and abstract way; if this were the case, we would simply be faced with an intentional offence under the general rules of criminal law. In hate crime, on the other hand, there is a surplus of intent to cause offence. It is not simply directed against the good protected by the criminal provision (e.g. property, physical integrity, etc.), nor against the victim, as the owner of that good, but against the victim as the owner of a characteristic rooted in the identity of the victim him/herself. A characteristic that the victim shares - objectively or, at least, as the offender perceives it - with a wider group of persons, with whom he or she may but not necessarily must cultivate relations in his or her daily life2. In other words, it is the mere possession of such a characteristic that transforms the individual into the target of a hate crime. Whereas, the latter can manifest itself in different forms and results in an offence against goods that the actor targets because they belong to a victim qualified by the possession of the “trigger characteristic”. In such a criminological dynamic, the victim-target is hit because he or she is a symbol of the group3.

• 4 For an up-to-date quantitative description of the spread of hate crimes, see L. Goisis, Crimini d’o (...)
• 5 COM (2020) 258 final, Communication from the Commission to the European Parliament, the Council, th (...)

2This contribution is set within the framework of European and Italian law, in particular. Currently in the European legal space, combating hate crimes – which have increased during the period of the Covid-19 pandemic4, is an express objective of the EU Victims’ Rights Strategy (2020-2025): «The EU’s strength lies in its diversity. Accordingly, the EU will do its utmost to prevent and combat hate crimes in all its forms, including those motivated by racial, anti-Semitic, homophobic or transphobic hate»5.

• 7 See European Committee on Crime Problems (CDPC), Commentary to Recommendation CM/Rec(2018)8 of the (...)

5With the caveats just presently formulated, it seems, however, that restorative justice can contribute positively to the institutional strategy of ‘response and prevention of hate crimes’ being able to produce positive effects (at least) along two fundamental “efficiency metrics” of criminal justice: on the one hand, the so-called Victim Recovery dimension; on the other hand, the so-called Offender Desistance aspect7.

• 8 Ibidem.

6Regarding Offender Desistance, the peculiarities of hate crime are such as to suggest a strong propensity of the offender to reoffend, unless the latter is involved in a re-education process that neutralises the tendency to dehumanise the victim and to see in him/her only as a tool to fight against the group that shares the “trigger characteristic” with him/her. The tendency of perpetrators of hate crimes towards an offensive progression and escalation of violence is also pointed out8. These can only be countered through a path of re-education in a meaningful sense, i.e. capable of activating a process of critical review of the committed fact that places the value dimension at the centre, and therefore, necessarily cites the subjects involved as human beings. As will be better specified later, restorative justice seems to be able to contribute to a rediscovery of values and to a reactivation of the capacity to cultivate relationships between people, and in this sense, it can enrich with content a re-educative programme that - beyond its placement in one or another phase of the criminal proceedings - aims at fully re-conquering the perpetrator to legality.

• 9 See OSCE, Hate Crime Laws: A Practical Guide, op. cit., p. 19: «Hate crimes differ from ordinary cr (...)
• 10 Or more correctly «enabling». See G. Mannozzi – R. Mancini, La giustizia accogliente, Milano, Franc (...)
• 11 See G. Mannozzi – G. A. Lodigiani, La giustizia riparativa. Formanti, parole e metodi, Torino, Giap (...)

7As for the Victim Recovery dimension, it must be considered that hate crime has strong subjective connotations in this respect too. We will return to this aspect as well, but it seems appropriate to point out forthwith that the offence suffered by the victim in case of hate crimes is amplified far beyond its material dimension (i.e. as a simple offence to the good protected by the criminal law and, therefore, as an offence to property, to physical integrity, etc.). The victim perceives that the motive of the aggression goes beyond this level and involves his or her identity, in which the perpetrator is callously simplified and reduced to the mere possession of the “trigger characteristic”. In cases of hate crimes, whereas victimisation does not only involve the individual directly affected by the aggression, but it is also the group that the victim symbolises and society more broadly9. Also, on this level, restorative justice seems to be able to take charge globally of the offence caused by hate crimes, and begins to activate the transformative processes of the persons involved - at various levels - in the experience of victimisation; capable of restoring to them the “power” to return to living their existence to the full (so-called Empowerment)10. It is also typical of restorative justice to allow the community as such, to actively participate in the management of the conflict thanks to the collective forms of dialogue that, since its anthropological origins it has developed (think of the so-called Circle or Conferencing)11.

• 12 See infra par. 2
• 13 See infra par. 3.

8This contribution aims to approach restorative justice from a functional perspective, i.e. highlighting its capacity to contribute to the achievement of the penal objectives of Offender Desistance and Victim Recovery. As such, it seems appropriate to make a few preliminary remarks: respectively, on the genesis of hate crimes from a criminological point of view12 , and on the hate crime victim and the offence suffered in this context13.

• 16 For a framing of the economic analysis of criminal law, see C. E. Paliero, «L’economia della pena. (...)
• 17 See G. Forti, «Le ragioni extrapenali dell’osservanza della legge penale: esperienze e prospettive» (...)

12It has been observed that the traditional punitive model centred on the negative preventive mechanism (i.e. based on the deterrence determined by the threat of punishment) is not always able to influence - according to the mechanism of counter-motivational drive - the behavioural choices of individuals who cultivate such intentions16. Instead, it would be much more effective for an intervention on the positive side of crime prevention, one that would disarm such aggressive approaches starting from a regained sharing of the values that support the precepts defended by the penal norms17. And it is precisely in this direction that the contribution of a restorative justice programme could functionally converge.

• 18 Cited in this regard are: (i) Shaw and McKay’s theory of social disorganisation, according to which (...)

(b) Some criminological theories then link the genesis of hate crimes to the factor of “social fragmentation”18.

• 19 See OSCE, Hate Crime Laws: A Practical Guide, op. cit., p. 19.

14The commission of hate crimes, within this framework, could do additional damage to the social fabric and cause further fragmentation at the community level19.

• 20 See G. Mannozzi, La giustizia senza spada. Uno studio comparato su giustizia riparativa e mediazion (...)
• 21 For the centrality of the concept of community in the restorative justice perspective, see G. Manno (...)

15Here too, it is possible to see a functional convergence of the restorative justice paradigm, which - from its origins, highlighted by anthropological research20 - is based on the recognition of the role of the community in taking charge of the issues generated by the conflict between the parties; in the “validation” of the storytelling carried out by perpetrator and victim, and in the development of a restorative solution that is satisfactory to all those involved21. Allowing the community to have a say, through restorative justice practices regarding the situation created because of the hate crime, would increase social cohesion – thus, counterbalancing the effects of social fragmentation already mentioned.

• 22 See L. Goisis, Crimini d’odio. Discriminazioni e giustizia penale, cit., p. 175.

16Applying Matza and Sykes22 “theory of neutralisation techniques” to hate crimes, the perpetrator can thus implement for self-exculpatory purposes:

• 23 See G. Mannozzi – G. A. Lodigiani, La giustizia riparativa. Formanti, parole e metodi, op. cit., p. (...)

17Here the functional convergence of restorative justice appears particularly evident, since in its way of operating it places the recognition of the other (as a person) and responsibility towards the other (as a person) at the centre23. It therefore opposes any form of reification and dehumanisation of the victim, counteracting any strategies of denial of responsibility for the deed committed and promoting a substantial and meaningful conception of non-compliance with the criminal law; never reduced to a purely formal datum. The reparative programme not only does not deny but starts with the acceptance of the data of reality, that characterises the fact committed.

• 24 Ibid., p. 354.
• 25 Ibidem.

19The latter represents a fundamental qualitative element of a programme that can be qualified as “restorative justice”24. As Mannozzi and Lodigiani make clear, «promoting the offender’s self-responsibility (...) means leading the offender to re-elaborate the conflict and the reasons that caused it, to mature the concept of responsibility “towards” the other, to perceive, precisely, the need for reparation»25. Going down this path evidently means for the offender to have taken the way of Offender Desistance; a junction, as mentioned, even more essential in the case of hate crimes.

• 26 L. Goisis, Crimini d’odio. Discriminazioni e giustizia penale, op. cit., p. 157.

(d) Once more, from a criminological viewpoint centred on the perpetrator, Levin and McDevitt have pointed out that hate crime is often substantially multi-subjective, i.e. it tends to involve a plurality of subjects in its criminal dynamics (beyond how this will then be formalised by law and criminal proceedings). In some cases, one goes so far as to identify the so-called hate group as «a particular perpetrator profile of hate crimes»26.

• 27 See ibidem. In the same direction, see EFRJ, Restorative Justice in cases of violent extremism and (...)

20When it is multi-subjective, the hate crime is the product of different roles: the leader, the “fellow traveller” (i.e. the one who incites the leader), the “unwilling participant” (the one who does not approve of the act, but does not have the courage to rebel for fear of losing the group’s approval), the “hero” (the one who disapproves of the act and opposes it)27.

• 28 The reference to a « ‘wider perpetrator community’» is also in T. Gavrielides, Restoring Relationsh (...)

21In fact, the hate crime seems to be characterised by a twofold multi-subjectivity: on one side, there is sometimes a real “community-perpetrator”, who shares the point of view of the offender28; on the other side, there is (always) a “community-victim”, who shares with the victim the identity trait that made him/her a target.

• 29 See footnote 11.

22Again, there is a point of functional convergence with restorative justice. Faced with a substantially multi-subjective fact - it does not matter if on the side of the perpetrator and/or on the side of the victim - restorative justice methods appear in fact particularly effective, because they allow for the creation of a unitary context of listening and dialogue where the plurality of voices (and of the relative emotional kits) can express themselves in an orderly and positively generative manner. One thinks of “extended composition” methods, such as Conferencing or the Circle29.

• 30 See OSCE, Hate Crime Laws: A Practical Guide, op. cit., p. 20
• 31 See T. Gavrielides, Restoring Relationships: Addressing Hate Crime through Restorative Justice, op. (...)

25The latter, in fact, is affected not only physically, but also in the depths of his/her identity because of his/her own (often immutable) characteristic. This exposes the victim to a deep sense of vulnerability and uncertainty30 with effects that can extend over the medium and long term – sometimes even for a lifetime31. It is no coincidence that Directive 2012/29/EU includes victims of hate crimes within the broader category of victims with a «high rate of secondary and repeat victimisation» (Recital 57).

• 32 L. Millington, “Using Restorative Justice in Cases of LGBTI Hate Crime (England and Wales)”, in A. (...)

26Precisely because in this field the psychological and emotional component of the harm appears to be particularly significant, hate crimes are paradigmatic in order to grasp and take into account the harm caused to the victim in a global sense, as restorative justice suggests. This means valorising all the components mentioned in the definition of victim according to directive 2012/29/EU, for which the «victim» is «a natural person who has suffered harm, including physical, mental or emotional harm or economic loss, which has been directly caused by a crime; » (Art. 2, par. 1, lett. a). Indeed, in the scholarly debate, a link is drawn between the seriousness of the harm suffered by the hate crime victim and the usefulness of using restorative justice programmes: «Hate crime is a serious offence which can have a lasting impact on the people affected. This means that Restorative Justice is a particularly important option for them - as it has the potential to address this lasting harm by allowing them to seek answers about why the incident happened - explain how it made them feel, and regain a sense of power and control»32.

• 34 See T. Gavrielides, Restoring Relationships: Addressing Hate Crime through Restorative Justice, op. (...)

31Then again, thanks to the empowerment effect already mentioned, the practice of restorative justice may allow to overcome or at least mitigate this negative feeling and may enable the victim to “take back control” of what happened to her/him34.

• 35 See Recital 63, Directive 2012/29/EU: «In order to encourage and facilitate crime reporting and to (...)
• 36 See COM (2020) 258 final, Strategia dell’UE sui diritti delle vittime (2020-2025), op. cit., p. 5.
• 37 See F. Bertelli – G. Viggiani, «Alcune prime osservazioni sull’applicazione della giustizia riparat (...)
• 38 L. Millington, Using Restorative Justice in Cases of LGBTI Hate Crime (England and Wales), op. cit. (...)

33A response to hate crime that also includes elements of Restorative Justice could likewise have positive effects in general terms— by increasing victims’ trust in the criminal justice system and their propensity to report. Such a link - clearly outlined already in Directive 2012/29/EU35 and explicitly included among the objectives of the EU Strategy on Victims’ Rights (2020-2025)36 - would make it possible to counteract the high black figure that characterises hate crimes, which are affected by substantial under-reporting and under-recording37. If under-recording can be associated with a deficient legal framework that does not allow hate crime to be recorded as such – under-reporting is instead, due to a series of subjective motivations that keep the victim from turning to the criminal justice system: «fear of the reaction victims may receive from the police, a perception that the crime was not serious enough, the repeated frequency of hate crime incidents across a person's life trajectory or reporting would not lead to any change»38. Emotions and feelings of insecurity and vulnerability, of which a restorative programme could well have a positive impact.

• 39 See T. Gavrielides, Restoring Relationships: Addressing Hate Crime through Restorative Justice, op. (...)

34The literature shows that the use of restorative justice has already been experimented with regard to hate crimes39. The peculiarities of the conflicts that characterise this area have highlighted the need to adopt the operational modalities typical of restorative justice and to follow particular caution in the choice of cases and the carrying out of restorative programmes.

• 40 See T. Gavrielides, Restoring Relationships: Addressing Hate Crime through Restorative Justice, op. (...)
• 41 «Restorative justice can offer the opportunity to challenge prejudice» (EFRJ, Restorative Justice i (...)

35As a preliminary remark, it should be noted that if hate crime draws its nourishment from stereotyping and prejudice, the most effective way to combat it is through dialogue, which indeed, restorative justice guarantees40. By restoring respectful and constructive communication between the parties, restorative justice “challenges prejudice”41 and - as already mentioned - reactivates the ability to recognise the other as a “person”.

• 42 See L. Millington, “Using Restorative Justice in Cases of LGBTI Hate Crime (England and Wales)”, op (...)

36Having recalled the fundamental principles of the subject - first and foremost, voluntariness with respect to accessing and carrying out the restorative process in each of its phases42 - it is appropriate to reflect on the influence that the conflict underlying the hate crime exerts on the modalities of restorative justice intervention.

• 43 EFRJ, Restorative Justice in cases of violent extremism and hate crimes. A practice guide, op. cit. (...)
• 44 Ibid., p. 5.

37Hate crimes fit into and create a highly polarised context, where «black and white, “us versus them” thinking, negative stereotyping, prejudice, and distrust»43 dominate. In such a framework, dialogue does not necessarily bring with it mutual understanding between the parties - on the contrary, a discussion about identities of individuals or groups - in both positive and negative terms - can contribute to reinforcing the construction of stereotyped or simplistic identities. Therefore, «Any restorative justice dialogue should avoid reinforcing those identities and feelings of separation, and should instead focus on a topic that builds common ground»44.

• 45 Ibid., p. 13. See also L. Millington, “Using Restorative Justice in Cases of LGBTI Hate Crime (Engl (...)

38The facilitator must be aware of this situation and must carry out thorough preparation of the individual parties before arriving at the moment of dialogue amongst them, which may be direct or indirect, as we shall see. In order to assess whether a conflict arising from a hate crime can in practice be dealt with using restorative justice methods, the facilitator must have specific training with regard to this type of conflict and a thorough knowledge of the communities involved45: both on the side of the victim (i.e. the community that shares the “trigger characteristic” with the victim) and on the side of the perpetrator (i.e. the hate group).

• 46 See L. Millington, “Using Restorative Justice in Cases of LGBTI Hate Crime (England and Wales)”, op (...)

39In literature, the opportunity to select facilitators also among members of the victim communities is also underlined, so as to allow a more immediate understanding of the needs and expectations of the victim in the reparative programme46. Indeed, sufficient guarantee on this point seems to be the principle expressed - for all areas in which restorative justice will operate - by the Council of Europe Recommendation No. 8 of 2018: «40. Facilitators should be recruited from all sections of society and should generally possess a good understanding of local cultures and communities. They should possess the sensitivities and capacities which enable them to utilise restorative justice in intercultural settings».

• 50 As instead recommended by Rule 30 of the Council of Europe Recommendation No. 8/2018: «The basic fa (...)
• 51 EFRJ, Restorative Justice in cases of violent extremism and hate crimes. A practice guide, op. cit. (...)
• 52 Ibid, p. 16.

41The facilitator will also have to recognise when the concrete case is not suitable to be dealt with within a restorative programme. On the side of the hate crime perpetrator, this is the case if they justify their conduct as an expression of ideological, political or religious convictions – and henceforth not admitting the fact in its disvalue50. However, a restorative process can take place if the perpetrator is «in the process of desistance»51 and acknowledges their responsibility for what happened; this can also occur a long time after the fact, but this does not make the restorative process any less useful. Similarly, on the victim’s side, the case is not suitable to be addressed with restorative justice methods «if the victims are vindictive or want to express hate and anger or take revenge during their encounters with the offender»52.

• 53 See G. Mannozzi – G. A. Lodigiani, La giustizia riparativa. Formanti, parole e metodi, op. cit., p. (...)

42In any case, with regard to hate crimes, the restorative programme must be victim- oriented53. If the request for access to restorative justice comes from the offender, restorative justice services should assess the motivation with caution, to avoid that the restorative programme is only exploited as an opportunity to meet the victim and cause repeated victimisation. In such cases, restorative justice practitioners will have to ask themselves first what the perpetrator wants from the meeting with the victim and what he/she can offer the victim and will have to assess possible indirect ways of dialogue with the victim.

• 54 L. Millington, “Using Restorative Justice in Cases of LGBTI Hate Crime (England and Wales)”, op. ci (...)
• 55 Ibidem.

43Also, in the case of hate crimes, in fact, the alternative is between restorative programmes involving face-to-face encounters between perpetrator and victim and indirect restorative methods. Although, the surveys conducted through interviews record a preference for programmes with face- to-face meetings, in the field of hate crimes – multiple mediated modes of dialogue between the parties have been tried out: «Restorative justice can be carried out by letters, shuttle mediation (where the facilitator passes information between the participants) or by video/audio conferencing»54, as well as by «proxy victims»55. This occurs when the victim does not wish to take part in the direct meeting with the perpetrator but is in favour of another person taking part instead. This will usually be a person from the same community as the victim - who has already experienced similar victimisation - who will talk to the victim to get to know his/her point of view and feelings and “bring” them into the restorative process.

• 56 Cfr. EFRJ, Restorative Justice in cases of violent extremism and hate crimes. A practice guide, op. (...)
• 57 «Social acceptance of discrimination against particular groups is an important factor in increasing (...)

44Beyond the forms taken in practice by restorative justice, positive outcomes are registered not only with respect to the two-efficiency metrics we have identified from the beginning (Victim Recovery and Offender Desistance), but also on a social level. In one respect, in fact, those who participate in the restorative programme return as “agents of peace” in their community and contribute to ethically dismantling hate speech and violence56. Conversely, the circumstance that the community is part of the dialogical process and takes “ownership” of the conflict without delegating its solution to formal institutions— contributes to a process of norm clarification and shared reaffirmation of the values protected by the penal norm. At the same time, it counterbalances the expansive tendency of hate crimes within the social group57.