Restorative Justice is an alternative approach to the traditional criminal justice system, which seeks to repair the harm caused by crime and promote reconciliation between the parties involved.

It is based on the idea that crime is not only a violation of the law, but also harm caused to social relations and the community as a whole. 

Thus, the aim of this work is to present not only its concept and functioning, but also how its role as a public policy tool within the justice system can have an impact. As we will see, restorative justice, despite being "new," is capable of bringing about significant social benefits.

In this article, we will discuss what Restorative Justice is, how it works in practice, what its objectives are, and how lawyers can work in this context. Thus, this article aims to clarify important points about restorative justice for lawyers seeking to work in this area or who have questions about the topic.

What is Restorative Justice?

Restorative justice differs from the traditional criminal justice system, which is based on punishing the offender, in that it seeks to meet the needs of victims and involve the community in resolving conflicts.

It is an ordered and systemic set of principles, methods, techniques, and activities aimed at raising awareness of the relational, institutional, and social factors that motivate conflict and violence, and through which conflicts that generate concrete or abstract harm are resolved in a structured way.

Restorative Justice is based on principles such as accountability, dialogue, reparation, and inclusion. It involves the active participation of the parties involved in the conflict resolution process, which may include the victim, the offender, their families, and community representatives.

The National Public Policy on Restorative Justice within the Judiciary is outlined in CNJ Resolution No. 225/2016 and aims to consolidate the identity and quality of Restorative Justice as defined in the regulations, so that it is not distorted or trivialized.

Article 1 of Resolution No. 225/2016 clearly defines what it is and how to resolve it, as follows: 

Article 1. Restorative Justice constitutes an ordered and systemic set of principles, methods, techniques, and activities aimed at raising awareness of the relational, institutional, and social factors that motivate conflicts and violence, and through which conflicts that generate concrete or abstract harm are resolved in a structured manner as follows: 

I – The participation of the offender is necessary, and, when applicable, the victim, as well as their families and others involved in the harmful event, with the presence of representatives of the community directly or indirectly affected by the event and one or more restorative facilitators; 

II – Restorative practices will be coordinated by restorative facilitators trained in self-composition and consensual conflict resolution techniques specific to Restorative Justice, who may be a court employee, public agent, volunteer, or appointed by partner entities; 

III – Restorative practices will focus on meeting the needs of all those involved, actively holding accountable those who contributed directly or indirectly to the occurrence of the harmful event, and empowering the community, highlighting the need to repair the damage and rebuild the social fabric broken by the conflict and its implications for the future.

How does restorative justice work in practice?

The agreement resulting from the restorative procedure must be formulated based on the free action and expression of the will of all participants, and its terms, accepted voluntarily, will contain reasonable and proportionate obligations that respect the dignity of all involved. 

In practice, restorative justice can be applied in various ways, depending on the context and severity of the crime. It can be used for everything from minor offenses to serious crimes. Some ways restorative justice can be applied include:

• Restorative Circles: These are meetings facilitated by an administrator, where the parties involved in the conflict come together to discuss the impact of the offense and find a joint solution. This approach is commonly used in cases of school, family, and community conflicts.
• Restorative Justice Conferences: These are meetings facilitated by an administrator, where the parties involved in the conflict meet to discuss the impact of the crime and find a joint solution. This approach is most commonly used in cases of more serious crimes, such as robbery and assault.
• Restorative Practices in Institutions: Restorative Justice can also be applied in institutions, such as schools, prisons, and companies, to address internal conflicts and promote a healthier and more inclusive environment.

Furthermore, it is a fundamental condition for restorative practice to occur that all participants give their prior, free, and spontaneous consent, ensuring the right to retract their consent at any time, up until the restorative procedure is approved.

Participants should be informed about the procedure and the possible consequences of their participation, as well as their right to seek legal advice at any stage of the procedure.

In this sense, all participants should be treated fairly and with dignity, ensuring mutual respect between the parties, who will be assisted in building, through reflection and the assumption of responsibilities, a feasible and effective solution, always looking to the future.

What are the objectives of restorative justice?

The main objective of Restorative Justice is to repair the harm caused by the crime and promote reconciliation between the parties involved.

She also seeks to meet the needs of victims, providing a safe space for them to express their feelings and needs. 

For example, one of the advantages is the faster resolution of the conflict. This is because, through restorative justice, the parties are not bound by the deadlines and formal procedures of criminal justice.

Furthermore, Restorative Justice aims to reduce recidivism: the Restorative Justice approach has been associated with a reduction in criminal recidivism, as it addresses the underlying causes of behavior.

How does a lawyer's role work in restorative justice?

The role of a lawyer in restorative justice can vary depending on the context and the role they play in the situation. The lawyer may act as defense counsel for the accused, as a representative of the victim, or even as a facilitator or mediator in the restorative process.

In their role as the defendant's lawyer, the attorney can help the client understand the options available in Restorative Justice and assess whether this is the best option for the case in question.

He can also accompany the client throughout the process and ensure that their rights are protected, including the right against self-incrimination.

As a representative of the victim, the lawyer can help the victim understand the options available in Restorative Justice and assess whether this is the best option for the case in question.

He can also accompany the victim throughout the process and ensure that their rights are protected, including the right to be heard and to receive compensation for the harm suffered.

As a facilitator or mediator, the lawyer can help ensure that the restorative process is conducted in a fair and balanced manner.

He can help define the rules of procedure and ensure that all parties involved have equal opportunities to speak and be heard. He can also help identify the needs of the parties involved and find creative and appropriate solutions for the case at hand.

In general, the lawyer's role in Restorative Justice is guided by the same ethical principles that govern the practice of law in general, including defending the rights of their clients, promoting justice, and maintaining the confidentiality of information shared in session.

The lawyer can therefore be an important figure in the restorative justice process, helping to ensure that the process is fair, balanced, and respectful of all parties involved.

References:

Fachini, Tiago. Restorative justice in Brazil: what it is, its objective and applications. PROJURIS, 2022.

CNJ. Restorative Justice. CNJ Portal.

RESOLUTION No. 225, OF MAY 31, 2016.