The Economic and Social Council,
Recalling its resolution 1999/26 of 28 July 1999, entitled
"Development
and implementation of mediation and restorative justice measures in
criminal justice", in which the Council requested the Commission on Crime Prevention and
Criminal Justice to consider the desirability of formulating United
Nations standards in the field of mediation and restorative justice,
Noting the discussions on restorative justice during
the Tenth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, held in Vienna from 10 to 17 April 2000, in
relation to the agenda item entitled "Offenders
and victims: accountability and fairness in the justice process",
Recognizing
that the use of restorative justice measures does not prejudice the
right of States to prosecute alleged offenders,
1.
Takes note of the submission of the preliminary draft
elements of a declaration of basic principles on the use of restorative
justice programmes in criminal matters, annexed to the present resolution;
2.
Requests the Secretary-General to seek comments from
Member States and relevant intergovernmental and non-governmental
organizations, as well as the institutes of the United Nations Crime
Prevention and Criminal Justice Programme network, on the desirability
and the means of establishing common principles on the use of restorative
justice programmes in criminal matters, including the advisability
of developing an instrument, such as the preliminary draft declaration
annexed to the present resolution, and on the contents of this draft;
3.
Also requests the Secretary-General to convene, subject
to the availability of voluntary contributions, a meeting of experts
selected on the basis of equitable geographical representation to
review the comments received and to examine proposals for further
action in relation to restorative justice, including mediation, as
well as the possibility of developing an instrument such as a declaration
of basic principles on the use of restorative justice programmes,
taking into account the preliminary draft declaration annexed to the
present resolution;
4. Further
requests the Secretary-General to report to the Commission on
Crime Prevention and Criminal Justice at its eleventh session on the
comments received and the results of the meeting of experts;
5. Invites
the Commission to take action at its eleventh session, on the basis
of the report of the Secretary-General;
6. Calls
upon Member States, building on the results of the Tenth United
Nations Congress on the Prevention of Crime and the Treatment of Offenders,
held in Vienna from 10-17 April 2000, to continue to exchange information
on experiences in the implementation and evaluation of programmes
for restorative justice, including mediation.
Preliminary
draft elements of a declaration of basic principles on the use of
restorative justice programmes in criminal matters
I. Definitions
1. "Restorative
justice programme" means any programme that uses restorative processes
or aims to achieve restorative outcomes.
2.
"Restorative
outcome" means an agreement reached as the result of a restorative process. Examples
of restorative outcomes include restitution, community service and
any other programme or response designed to accomplish reparation
of the victim and community, and reintegration of the victim and/or
the offender.
3. "Restorative
process" means any process in which the victim, the offender and/or any other individuals
or community members affected by a crime actively participate together
in the resolution of matters arising from the crime, often with the
help of a fair and impartial third party. Examples of restorative
process include mediation, conferencing and sentencing circles.
4. "Parties"
means the victim, the offender and any other individuals or community
members affected by a crime who may be involved in a restorative justice
programme.
5.
"Facilitator"
means a fair and impartial third party whose role is to facilitate
the participation of victims and offenders in an encounter programme.
II. Use of restorative justice programmes
6. Restorative
justice programmes should be generally available at all stages of
the criminal justice process.
7. Restorative
processes should be used only with the free and voluntary consent
of the parties. The parties should be able to withdraw such consent
at any time during the process. Agreements should be arrived at voluntarily
by the parties and contain only reasonable and proportionate obligations.
8. All
parties should normally acknowledge the basic facts of a case as a
basis for participation in a restorative process. Participation should
not be used as evidence of admission of guilt in subsequent legal
proceedings.
9. Obvious
disparities with respect to factors such as power imbalances and the
parties'
age, maturity or intellectual capacity should be taken into consideration
in referring a case to and in conducting a restorative process. Similarly,
obvious threats to any of the parties' safety should also be considered in referring
any case to and in conducting a restorative process. The views of
the parties themselves about the suitability of restorative processes
or outcomes should be given great deference in this consideration.
10. Where
restorative processes and/or outcomes are not possible, criminal justice
officials should do all they can to encourage the offender to take
responsibility vis-�-vis the victim and affected communities, and
reintegration of the victim and/or offender into the community.
III. Operation of restorative justice programmes
11. Guidelines
and standards should be established, with legislative authority when
necessary, that govern the use of restorative justice programmes.
Such guidelines and standards should address:
(a)
The conditions for the referral of cases to restorative justice
programmes;
(b)
The handling of cases following a restorative process;
(c)
The qualifications, training and assessment of facilitators;
(d)
The administration of restorative justice programmes;
(e)
Standards of competence and ethical rules governing operation
of restorative justice programmes.
12. Fundamental
procedural safeguards should be applied to restorative justice programmes
and in particular to restorative processes:
(a)
The parties should have the right to legal advice before
and after the restorative process and, where necessary, to translation
and/or interpretation. Minors should, in addition, have the right
to parental assistance;
(b)
Before agreeing to participate in restorative processes,
the parties should be fully informed of their rights, the nature
of the process and the possible consequences of their decision;
(c)
Neither the victim nor the offender should be induced by
unfair means to participate in restorative processes or outcomes.
13. Discussions
in restorative processes should be confidential and should not be
disclosed subsequently, except with the agreement of the parties.
14.
Judicial discharges based on agreements arising out of restorative
justice programmes should have the same status as judicial decisions
or judgements and should preclude prosecution in respect of the same
facts (non bis in idem).
15. Where
no agreement can be made between the parties, the case should be referred
back to the criminal justice authorities and a decision as to how to
proceed should be taken without delay. Lack of agreement may not be
used as justification for a more severe sentence in subsequent criminal
justice proceedings.
16. Failure
to implement an agreement made in the course of a restorative process
should be referred back to the restorative programme or to the criminal
justice authorities and a decision as to how to proceed should be taken
without delay. Failure to implement the agreement may not be used as
justification for a more severe sentence in subsequent criminal justice
proceedings.
IV. Facilitators
17. Facilitators
should be recruited from all sections of society and should generally
possess good understanding of local cultures and communities. They should
be able to demonstrate sound judgement and interpersonal skills necessary
to conducting restorative processes.
18. Facilitators
should perform their duties in an impartial manner, based on the facts
of the case and on the needs and wishes of the parties. They should
always respect the dignity of the parties and ensure that the parties
act with respect towards each other.
19.
Facilitators should be responsible for providing a safe and appropriate
environment for the restorative process. They should be sensitive to
any vulnerability of the parties.
20. Facilitators
should receive initial training before taking up facilitation duties
and should also receive in-service training. The training should aim
at providing skills in conflict resolution, taking into account the
particular needs of victims and offenders, at providing basic knowledge
of the criminal justice system and at providing a thorough knowledge
of the operation of the restorative programme in which they will do
their work.
V. Continuing development of restorative justice
programmes
21. There should
be regular consultation between criminal justice authorities and administrators
of restorative justice programmes to develop a common understanding
of restorative processes and outcomes, to increase the extent to which
restorative programmes are used and to explore ways in which restorative
approaches might be incorporated into criminal justice practices.
22.
Member States should promote research on and evaluation of restorative
justice programmes to assess the extent to which they result in restorative
outcomes, serve as an alternative to the criminal justice process and
provide positive outcomes for all parties.
23.
Restorative justice processes may need to undergo change in concrete
form over time. Member States should therefore encourage regular, rigorous
evaluation and modification of such programmes in the light of the above
definitions.
