CC BY
37Nodirov Muzaffar
Deputy Dean of Faculty of Criminal Justice at Tashkent State University of Law,
ORCID: 0000-0003-3970-2985 E-mail: [email protected]
ISSUES IN IMPLEMENTING RESTORATIVE JUVENILE
JUSTICE IN UZBEKISTAN
Abstract: Juvenile crime is a serious problem all over the world. However, relying on the practice of many countries, we may conclude that the formal criminal process, punishing, and detention are not good solutions for dealing with this problem. In this regard, there is a great necessity to implement alternatives to the formal criminal process and detention.
This scientific article examines the concept and effectiveness of restorative justice for juvenile offenders. The importance of restorative justice, the main goals andfeatures of this approach, and its effects on juvenile offenders, victims, and the community are discussed.
In addition, the article analyzes the international legal framework for applying restorative justice programs and tools. It is argued that there are many benefits of restorative justice approaches such as providing appropriate protection to children (as restorative justice focuses on restoring the harm to victims caused by crime, rather than punishing), leading offenders to law-abiding lives, and promoting community to prevent crime.
Based on the approaches to restorative justice proposed in the literature, the author gives his own definition of this mechanism. The wide practiced models of restorative justice like family group conferencing, victim-offender mediation, and circle sentencing are analyzed.
In this article, based on the analysis of the benefits of restorative justice, the issues related to the application of the restorative justice approach to juveniles in criminal proceedings in Uzbekistan are explored.
Keywords: restorative juvenile justice, victim, offender, crime, resolution of a dispute, models of restorative justice, restoring the harm.
1. Introduction
Today, a minimum of between 1.3 and 1.5 million children are deprived of liberty per year (wherein the figures do not include the approximately 1 million children in police custody)[1], and countless children have to pass throughout the criminal justice process as offenders. However, the arrest, detention, or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time, as stated in Article 37 of Convention on the Rights of the Child. Because no matter the reason, depriving liberty is not in the best interest of a child. These measures, as well as the criminal justice process, may be harmful to children, jeopardizing their development and putting them at increased risk of social discrimination, and causing psychological injury. In this regard, it is important to promote strategies that provide an alternative to a formal trial, detention, and custodial sentences for children. Restorative juvenile justice may serve as an effective tool in this issue.
Restorative justice can be an option for dealing with juvenile crimes because it is a more child-friendly solution for both the short and long-term. Restorative justice programs have great potential in facilitating conflict resolution and providing appropriate protection to children. The main purpose of these programs is to repair the harm caused by criminal behavior, promote victim support, and restore offenders to law-abiding lives.
The essence of restorative justice is communication between the victim and offender[2]. Closure communication due to the restorative justice process helps both offender and victim reach a mutual consensus on resolving the occurred conflict between them, which helps to reconsider the broken legal relations.
UN Basic principles on the use of restorative justice programs in criminal matters states that restorative justice provides an opportunity for victims to obtain reparation, feel safer and seek closer; allows offenders to gain insight into the causes and effects of their behavior
and to take responsibility meaningfully; and enables communities to understand the underlying causes of the crime, to promote community well-being and to prevent crime[3].
In many countries, restorative justice may be perceived as a new and unfamiliar concept. However, in a number of traditional societies, restorative justice values, such as healing, reconciliation, and mutual respect, have long served to resolve conflict and strengthen community bonds. Indeed, restorative justice derives from ancient forms of community justice, practiced around the world, that focus on establishing reconciliation between offenders and those affected by the offence, in order to restore social harmony[4].
2. The international legal framework for restorative justice
The establishment of restorative justice is constituted by various international standards on the protection of the rights of children involved with the criminal justice system, particularly by the Convention on the Rights of the Child (CRC), the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules); UN Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines); Rules for the Protection of Juveniles Deprived of their Liberty; and the Guidelines for Action on Children in the Criminal Justice System.
The CRC establishes a concept of dealing with children in conflict without resorting to judicial proceedings (Article 40 (3) (b)). It also promotes the reintegration of child offenders into society and the determination of the child's age by using a human-rights-based treatment (Article 40 (1)). The CRC Committee strongly prohibits any treatment that leads to stigmatization, social isolation, or negative publicity of the child. In this regard, restorative programs are useful for avoiding stigma and criminal records that may negatively affect the child.
In the implementation of juvenile justice, the authorized body takes into account the general principles of the CRC, such as the presumption of innocence, the right to effective participation in the proceedings, legal or other appropriate assistance and freedom from compulsory self-incrimination as well as other related principles mentioned above.
These important provisions related to juvenile justice have been further developed in more detail in UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules); UN Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines); Rules for the Protection of Juveniles
Deprived of their Liberty; and the Guidelines for Action on Children in the Criminal Justice System.
3. Definition of the restorative justice
There is no unique definition for "restorative justice". For instance, the UN Office on Drugs and Crime defines restorative justice as a way of responding to criminal behavior by balancing the needs of the community, the victims, and the offenders[5].
Daly (2016) argues that restorative justice is a "contemporary justice mechanism to address crime, disputes, and bounded community conflict. The mechanism is a meeting (or several meetings) of affected individuals, facilitated by one or more impartial people" [6].
According to John Braithwaite, restorative justice is a process where all stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm. With crime, restorative justice is about the idea that because crime hurts, justice should heal. It follows that conversations with those who have been hurt and with those who have inflicted the harm must be central to the process [7].
Carolyn Boyes-Watson defined restorative justice as "a growing social movement to institutionalize peaceful approaches to harm, problem-solving and violations of legal and human rights ...restorative resolutions engage those who are harmed, wrongdoers and their affected communities in search of solutions that promote repair, reconciliation and the rebuilding of relationships. Restorative approaches seek a balanced approach to the needs of the victim, wrongdoer and community through processes that preserve the safety and dignity of all" [8].
Though much of the literature on restorative justice has been regarding the extent to which it does bring about shame or guilt on the part of the offender (or instil empathy towards the victim),[9] a constant backwards focus, as the criminal justice system tends to have, does not actually aid in encouraging the offender to desist from crime or help persistent offenders learn to lead a non-offending life in the community[10].
According to N. Solovyova and V. Shinkaruk, restorative justice is based on the idea of repairing the damage done to the victim. The offender's responsibility, in this case, is to establish communication with the victim, help the victim by his/her actions, thereby overcome his/her guilt, and lay the foundation for his non-criminal future [11].
Having analyzed the definitions for restorative justice stated above, we can underline its following features:
- restorative justice focuses on the harm caused by a crime more than the rules that have been broken;
- opportunities for dialogue are provided as part of the restorative practice between offenders and victims;
- restorative justice instigates the partnership and reintegration of all parties, including victims, offenders, and the community (not coercion and isolation), aimed at eliminating the consequences of the crime;
- participation in formal criminal justice proceedings eliminates its stigmatizing effects on offenders;
- it requires offenders to take responsibility for their actions and the harm caused by the crime;
Taking into account the features of restorative justice, we propose to define restorative justice as "a mechanism of addressing crime, disputes, accomplished through cooperative processes involving the offender, the victim, and the community in order to repair the harm caused by the crime, urging the offender to take responsibility in a meaningful sense and enabling communities to understand the causes of the crime and prevent it.
4. Restorative justice models
There are three wide-broad models of restorative justice used in criminal justice:
- family group conferencing;
- victim-offender mediation;
- circle sentencing.
Family group conferencing involves bringing together the family and friends of both the victim and the offender, and sometimes also other members of the community to participate in a professionally facilitated process to identify desirable outcomes for the parties, address the consequences of the crime and explore appropriate ways to prevent the offending behavior from reoccurring[12].
So family group conferences open up new opportunities for crime victims to become directly involved in imposing sanctions on the offender.
Victim-offender mediation programs offer a direct or indirect process wherein the victim and the offender engage in a discussion of the crime and its impact that is facilitated by an impartial third party trained for this purpose, either in a face-to-face meeting or through other indirect means. At the very least, they offer the opportunity for an assisted dialogue to take place, directly or indirectly, between the offender and the victim[13].
Victim-offender mediation is aimed at addressing the needs of crime victims, as well as at encouraging offenders to be responsible for their crimes. Mediation can be operated by either governmental agencies or not-for-profit organizations. They involve the voluntary participation of the victim and the offender. Victim-
offender mediation may achieve its objectives if victims and offenders meet face-to-face, express their feelings directly to each other and develop a new understanding of the situation. With the help of a facilitator, they can reach an agreement that assists in repairing damaged relations.
Circle sentencing is based on the responsibility placed on every member of the community to forgive. The sentencing circle can take place inside or outside the court, with or without the participation of the judge and counsel. For the sentencing circles to be most effective, it is important to rely on protocols that govern what information is before the circle and how the results of the circle are to be reported to the court[14].
Circle sentencing provides options for restitution and punishment. It can offer solutions taking into account the circumstances of each offender, the requirements of each case, and the capacity of the community. Circles are aimed at strengthening the collective sense of community to empower the victim, the offender, and community members through a problem-solving process. The goal is to facilitate the rehabilitation and social reintegration of the offender.
5. Issues of implementing restorative juvenile justice
Bringing a child into contact with the criminal justice system is a difficult issue, as decisions have to be made that will affect the child's future and lead to stigmatization. In this regard, it is important to implement alternatives to a formal criminal process. Restorative justice, particularly for children, may be a good tool for resolving conflicts that emerge from committing a crime. As restorative justice concerns about broken relationships and injured persons, not about a break down in society or violated rules.
In juvenile justice, a child is not punished as an offender for wrongdoing but included in a procedure aimed at restoring the harm caused to the victim and leading the offender to a meaningful attitude to the crime committed and its consequences. On the whole, restorative justice takes into account the needs of all affected by the crime and is oriented towards the restoration of relations between victims and offenders.
While discussing the issue of implementing restorative juvenile justice, the benefits of this process should be analyzed. So restorative juvenile justice has the following benefits:
1) restorative juvenile justice views criminal acts more comprehensively: it recognizes that offenders harm victims, communities, and even themselves, which is important due to the specific age and psychological specificity of juveniles;
2) restorative justice involves more parties: rather than giving key roles only to the government and the offender, it includes victims and communities as well.
3) restorative justice focuses on not punishing but on restoring the harm caused. The restorative justice approach can avoid social discrimination and psychological injury, which may be inflicted on juveniles in official trial proceedings.
6. Conclusion
In conclusion, it is suggested that restorative justice is an alternative approach to formal criminal justice in settling a variety of disputes and providing for an appropriate response to the needs, rights, and interests of victims, offenders, communities, and all parties.
Restorative justice solves disputes, emerged as a result of committing a crime through cooperative processes that include the offender, the victim, and the community in order to repair the harm of the crime,
urges the offender to take responsibility in a meaningful way; and enables communities to understand the causes of crime and prevent it.
Restorative justice as an alternative to formal criminal justice can prevent juvenile offenders from various effects on their future development (such as social discrimination, stigmatization, and psychological injury). In this regard, implementing restorative juvenile justice into the criminal justice proceedings of Uzbekistan will provide further guarantees for juveniles as it is more child-friendly and child-centric and serves the best interests of the child.
At the same time, the restorative justice approach can provide crime victims with active participation in conflict resolution, criminal offenders with the opportunity to take responsibility for their behavior and receive appropriate assistance to fill their particular needs, and the authorities with an effective strategy for responding and preventing crime.
References:
1. UN Global Study on Children Deprived of Liberty / Distr.: General 11 July 2019 Seventy-fourth session Item 68 (a) of the preliminary list* Promotion and protection of the rights of children: promotion and protection of the rights of children. Item.86. Available at: https://defenceforchildren.org
2. Joanna Shapland. Forgiveness and Restorative Justice: Is It Necessary? Is It Helpful? Oxford Journal of Law and Religion, 2016, 5, 94-112. Available at https://academic.oup.com/ojlr/article/5/1/94/1752338
3. Basic principles on the use of restorative justice programmes in criminal matters, ECOSOC Res. 2000/14, UN Doc. E/2000/INF/2/Add.2 at 35, (2000). Available at https://www.unodc.org/pdf/criminal_justice
4. Promoting restorative justice for children. The Office of the Special Representative of the Secretary-General on Violence against Children, 2016. Available at https://sdgs.un.org/sites/default/files/publications/2599
5. Handbook on Restorative Justice Programmes (2006). United Nations Office on Drugs and Crime // Criminal justice handbook series, p.6. Available at: https://www.unodc.org/documents/justice-and-prison-reform
6. Daly, K. What is restorative justice? Fresh answers to a vexed question. Victims & Offenders, 2016, 11(1), p.21 .
7. Braithwaite, John. Restorative Justice and De-Professionalization. The Good Society, 2004, 13 (1): 28-31.
8. Boyes-Watson, C. Suffolk University, College of Arts & Sciences, Center for Restorative Justice, 2014.
Available at: https://www.suffolk.edu/college/centers/15970.php
9. Nathan Harris, Lode Walgrave and John Braithwaite. Emotional Dynamics in Restorative Conferences. 2004, Theoretical Criminology 191-210
10. Antony E Bottoms and Joanna Shapland, 'Learning to Desist in Early Adulthood: The Sheffield Desistance Study' in Joanna Shapland, Stephen Farrall, and Anthony E Bottoms (eds), Global Perspectives on Desistance: Reviewing What We Know, Looking to the Future (Routledge 2016).
11. Soloveva N.A, Shinkaruk VM. Terminologicheskaja problema opredelenija vosstanovitel'nogo pravosudija [The terminological problem of defining restorative justice] - Ve stnik VolGU. Series 5. Jurisprudence. 2013. № 3 (20). - P. 105
12. Handbook on Restorative Justice Programmes (2006). United Nations Office on Drugs and Crime // Criminal justice handbook series, p.26
13. Bolivar D. The local practice of restorative justice: are victims sufficiently involved?, 2015, Vanfraechem
14. Bolivar, D. and Aertsen. I. (eds.), Victims and Restorative Justice, Abingdon, Oxon: Routledge, pp. 203-238. See also: Umbreit, M.S., Coates, R.B. and Vos, B. Restorative Justice Dialogue: A multi-dimensional, evidencebased practice theory, 2007, Contemporary Justice Review: Issues in Criminal, Social, and Restorative Justice, 10(1), pp. 23-41.
15. Rudin, J. Indigenous People and the Criminal Justice System: A practitioner handbook, Toronto: Emond, 2019, p. 233
