Human Rights & Restorative Justice60 years from the European Convention on Human Rights:

Current trends on human rights, Panteion University of Social & Political Sciences, Athens, 17/12/2010

Dr. Theo GavrielidesIARS Director, Visiting Senior Research Fellow Open University (UK), Visiting

Scholar Mount Royal University (Canada)

Contents of the presentation:

Empowering Young People to Influence Policy, Practice & the Law

- Introducing restorative justice

- The human rights discourse in Europe

- Why restorative justice?

- Why not restorative justice?

- Restorative justice and human rights values: friends of foes?

- Restorative justice and human rights legislation: complementary or contradictory?

- Deconstructing Western perspectives of human rights and reconstructing a multi-cultural paradigm

About IARS Independent Academic Research Studies (IARS) is a youth-led social policy think-tank that was set up in 2001 to empower young people to inform and influence policies and practices that affect them. We have expertise in restorative justice, criminal justice, human rights, equality and public legal education.-Mediation and restorative justice in prison settings - MEREPS: An international project co-financed by the European Commission Criminal Justice Programme 2008-Restorative justice for serious and complex cases – “Violence against women and restorative justice: a comparative model of social change” Gavrielides & Artinopoulou, “Restorative justice and hate crimes”, (Greece, Croatia, Germany and the UK)-Bringing human rights and restorative justice values under one roof – “Rights and restoration within youth justice” de sitter publications: Canada 2012, Gavrielides

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Introducing “restorative justice” Many definitions and yet there is ambiguity & conceptual fault-lines (Gavrielides 2008)

"Restorative justice is an ethos with practical goals, among which is to restore the harm done by including all affected parties in a process of understanding through voluntary and honest dialogue, and by adopting a fresh approach to conflicts and their control, retaining at the same time certain rehabilitative goals" (Gavrielides 2007)

RJ Practices: Victim-Offender mediation (direct & indirect), family group conferences, healing and sentencing/ peacekeeping circles, community restorative Boards (Bazemore and Walgrave 1999, Johstone 2001, Crawford and Newburn 2003).

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The human rights discourse in Europe Post WW II concept: UN Universal Declaration of Human rights (10 Dec 1948), Council of Europe European Convention on Human Rights (4 Nov 1950)

Three generations/ three watchwords of the French Revolution: Liberté (civil and political rights – negative in nature), Egalité (social, economic and cultural rights - positive), Fraternité (group/collective rights).

Article 1 states: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”.

Everyone is entitled to these minimum guarantees simply because of their humanity. They are not attached to concepts such as citizenship or nationality, but exist to provide minimum protection against state action.

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The human rights discourse in Europe 60 years on and there is evidence to suggest that the European Court of Human Rights is exercising a harmonising influence on the member states’ criminal justice systems (see Gavrielides Theo (2005) “Human Rights vs. Political Reality: The Case of Europe’s Harmonising Criminal Justice Systems”, 5:1 International Journal of Comparative Criminology, pp. 60-84)

However, there has been criticism:

Westernised and individualised understanding of human rights

Policy (e.g. criminal justice agents), political (e.g. sovereignty), economic (e.g. sanctions and implementation) and legislative (e.g. constitutional) implications

Human rights effectiveness within the criminal justice system

Focus on offenders – the victim and the community tend to be the forgotten parties (pre-set targets such as recidivism)

Available levers within human rightsEmpowering Young People to Influence Policy & Practices

Why restorative justice?

Empowering Young People to Influence Policy, Practice & the Law

Victim satisfaction

Victim monetary/ material compensation

Victim non-material compensation (apology, healing)

Reduction of re-offending (recidivism)

Offender satisfaction

Community impact

Why restorative justice? A cost-benefit analysis:

Empowering Young People to Influence Policy, Practice & the Law

Based on 342 cases, for every £1 spent on restorative justice, up to £9 was saved in lowering the cost of offending. In total, the 342 cases that were processed through restorative justice saved the criminal justice system £7.29m (Shaplant et al 2008: Ministry of Justice Research Series 10/08)

Miers et al (2001) £177 – £712 per case, Holdaway et al (2001) £410 per case

The average cost per person proceeded against in the courts is £2,700 (Home Office 1999).

Empowering Young People to Influence Policy, Practice & the Law

Why not restorative justice?

Empowering Young People to Influence Policy, Practice & the Law

Restorative justice may not be punitive but has implications for the offender, the victim, the community:

Risks to suspects (principle of voluntariness, presumption of innocence, coerced to take responsibility, legal representation)

Double jeopardy (Article 6 Human Rights Act)

Risks to child defendants

Principle of proportionality (sentencing), upper-lower limits

Power imbalances (gender, age, race, socio-economic status)

Re-victimisation, risks to personal safety, coercion, offender biased proceedings, lack of information,

Restorative justice and human rights values: friends or foes?

Empowering Young People to Influence Policy, Practice & the Law

FRED Human Rights Values

•Fairness (Article 6

•Respect (Articles 3, 7, 8, 12)

•Equality (Articles, 9, 10, 11, 14)

•Dignity (Articles 2, 3, 4, 5)

Restorative justice and human rights legislation: complementary or contradictory?

Empowering Young People to Influence Policy, Practice & the Law

• International conventions

• Regional conventions

• National legislation

Deconstructing Western perspectives of human rights and reconstructing a multi-cultural paradigm

Empowering Young People to Influence Policy, Practice & the Law

Deconstructing the “principles of a fair trial/ due process” (international conventions, bills of rights, statutes, case law). Currently, this understanding is:

•Narrow (e.g. it is possible to give up the right to be presumed innocent through acknowledging responsibility)

•Based on a very individualised approach

•Eurocentric (through a set of norms based on Western cultures and practices based on liberal thought)

Deconstructing Western perspectives of human rights and reconstructing a multi-cultural paradigm

Empowering Young People to Influence Policy, Practice & the Law

• Broadening the discourse around human rights

• Justice versus fairness (or “justice of entitlements” versus “justice of right relationships”)

• Human rights based on a more communitarian approach

• Human rights must be separated from the “civilising crusade” by the Western world

• Reconstruct a new idea of human rights based on a multi-cultural approach and away from Western male leaders

Concluding message and proposition for academia and policy

Empowering Young People to Influence Policy, Practice & the Law

Restorative justice values and legislation is reconcilable and complementary to the human rights discourse. They currently sit within the traditional criminal justice model which makes them look in opposition.

Restorative justice advocates need to move beyond the focus on the individual which characterises the Western approach to human rights and begin an evaluation of the rights of the individual within a more communitarian approach.

Contact details

Dr. Theo Gavrielides

T.Gavrielides@iars.org.uk 3B, Park Place, 10-12 Lawn Lane, London SW8 1UD, UK

Office no: +44(0)20 8133 8317Office Mob: +44(0)7970924535