Legal Experts

14 February 2022

Pictured: Sergei Pashin, retired federal judge, member of the Moscow Helsinki Group

Source: Moscow Helsinki Group [original source: Независимая газета]

The Council of Europe has called on member states to develop restorative justice as an alternative to traditional criminal proceedings. Under such a system, crimes are considered not as harm to the state, but as harm caused to a specific person which must be compensated. In this case, experts believe, it is possible to move away from the punitive approach in court decisions and the use of primitive performance indicators in assessing the activities of law enforcement agencies.

‘Restorative justice should be an open public process,’ the Council of Europe says. Such a system of justice bears the hallmarks of mediation and consequently implies voluntary meetings between a victim and their abuser in a calm environment. So that eventually the latter will take on responsibility to make amends for the harm inflicted. And the state must in turn create the necessary conditions for this. ‘This system of justice, which seeks in the first instance to meet needs and restore the harm that was done appears very different from punitive justice, which is focused on condemnation and suffering,’ the Council of Europe points out.

The idea of codifying this approach in law in Russia was voiced back in 2020 at a meeting between the president and the Human Rights Council. At that time Vladimir Putin agreed to extend this regime initially to cases involving minors. A programme for the development of restorative justice was set out in the National Strategy of Actions in the Interests of Children for the years 2012-2017. The Supreme Court was instructed to prepare corresponding legislative amendments, and it agreed, but since then there have been no further moves in this direction.

However, as Nezavisimaya gazeta discovered, the necessary amendments were drafted by lawyers and academics and were submitted to the appropriate ministries and agencies. The explanatory note attached explains that this is a serious ‘step toward humanization’. Both parties – the perpetrator of the crime and the victim – are given the opportunity to actively participate in the resolution of issues that arose from the commission of the offence. ‘The repentance of the suspect or accused, their desire to assume responsibility not only for any harm with regard to property, but also moral harm caused to the victim should be encouraged,’ the authors pointed out.

As one of the authors of this project, retired federal judge and member of the Moscow Helsinki Group Sergei Pashin, explained, restorative justice is when a crime is seen not as harm caused to the state, but as an act that causes direct harm to the victim. And it is the victim’s rights that in the first place restorative justice is intended to restore. That is why this concept is based on negotiations and acts of reconciliation. In our punitive system, Pashin said, the victims themselves are also vulnerable, as essentially they receive nothing for the suffering they endure. The defendant also feels like a victim of the system. Pashin explained that in restorative justice ‘paramount is the desire to restore the web of social relations that were destroyed by the offence.’ There is no notion of punishing or intimidating anyone. The goal is ensure the defendant takes responsibility for their actions. That is why the defendant meets with the victim and moreover not in the courtroom, but in a relatively comfortable environment.

Pashin confirmed there are countries where this experience has been working successfully – the U.S. and Canada. Moreover, some Russian regions, including Arkhangelsk and Perm, are also trying to implement such justice (at one time it was also introduced in some district courts in Moscow). But this is done by enthusiasts. According to Pashin, people who are ‘committed, conscientious and not afraid to take responsibility upon themselves.’ And, understandably, there are few people like that. So far the right to exercise a kind of restorative justice is mentioned only in Article 25 of the Russian Criminal Code: ‘Termination of a criminal case.’ However, there it is a whole range of restrictions. ‘All over the world, however, this is also done in relation to serious crimes, and after conviction, when, let’s say, the victim visits the offender in prison and reconciliation meetings are held there.’ Pashin also noted that the first step in the right direction has been made by the Federal Penitentiary Service, which requires convicts write so-called letters of reconciliation to send to their victims. The idea is that a person who wants to be released on parole must first apologize.

Pashin said he regrets that the development of restorative justice as a whole is impossible in separation from the institutions of the criminal justice system – from investigators and judges who are clearly interested in a quite different approach, namely, ‘in bringing the case to trial and achieving a conviction.’ Simply put, he emphasised, what is good for the people is a headache for the system. Although, as Pashin pointed out, legislatively introducing restorative justice into the Russian Criminal Code would make it possible to ‘reduce the number of prisoners and of stigmatized people in general,’ while victims would receive fair compensation. ‘If this were done,’ Pashin said, ‘the justice machine would be less overloaded and the experience for people would beless traumatic, because they would themselves be involved in a process of negotiation over the final outcomes.’

Translated by Simon Cosgrove