Repositioning Restorative Justice in Europe

Abstract

Over the last 20 years, the European Union (EU) has invested considerable amount of resources in supporting policies and legislation that promote mediation and other restorative justice (RJ) practices at the national and regional level. Alongside these developments a series of legal safeguards, standards, and regulations were introduced to mainstream restorative justice in European criminal justice systems. While we are far from claiming that a unified restorative justice model exists across European countries, the standardization of restorative justice through top-down approaches raises serious concerns around its viability as a community-born ethos. This article draws from the findings of an EU-funded research project that focused on the implementation of the restorative justice articles of the. Victims’ Directive. The article argues that if restorative justice is not repositioned in Europe through innovation and bottom-up structures of community, unregulated, unregistered, and localized projects, it will soon face its demise. The mainstreaming, regulation, and state control of restorative justice in Europe must be balanced against what Nils Christie identified as its original intention of returning conflicts re property.

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Victims & Offenders
An International Journal of Evidence-based Research, Policy, and
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ISSN: 1556-4886 (Print) 1556-4991 (Online) Journal homepage: http://www.tandfonline.com/loi/uvao20
Repositioning Restorative Justice in Europe
Theo Gavrielides
To cite this article: Theo Gavrielides (2016) Repositioning Restorative Justice in Europe, Victims
& Offenders, 11:1, 71-86, DOI: 10.1080/15564886.2015.1105342
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Victims & Offenders, 11:71–86, 2016
Copyright © Taylor & Francis Group, LLC
ISSN: 1556-4886 print/1556-4991 online
DOI: 10.1080/15564886.2015.1105342
Repositioning Restorative
Justice in Europe
Theo Gavrielides
Founder & Director, The IARS International Institute, London, UK
Founder & Co-Director, Restorative Justice for All, London, UK
Visiting Professor, Faculty of Society and Health, Buckinghamshire New University,
London, UK
Adjunct Professor, Centre for Restorative Justice, Simon Fraser University, Vancouver,
Canada
Abstract: Over the last 20 years, the European Union (EU) has invested considerable
amount of resources in supporting policies and legislation that promote mediation and
other restorative justice (RJ) practices at the national and regional level. Alongside
these developments a series of legal safeguards, standards, and regulations were intro-
duced to mainstream restorative justice in European criminal justice systems. While we
are far from claiming that a unified restorative justice model exists across European
countries, the standardization of restorative justice through top-down approaches
raises serious concerns around its viability as a community-born ethos. This article
draws from the findings of an EU-funded research project that focused on the imple-
mentation of the restorative justice articles of the. Victims’ Directive. The article argues
that if restorative justice is not repositioned in Europe through innovation and bot-
tom-up structures of community, unregulated, unregistered, and localized projects,
it will soon face its demise. The mainstreaming, regulation, and state control of
restorative justice in Europe must be balanced against what Nils Christie identified
as its original intention of returning conflicts re property.
Keywords: restorative justice, victim-s rights, victims, prevention, methods,
qualitative
INTRODUCTION
Around 30 million crimes are committed in the European Union (EU) every
year.1Independently of their location, EU citizens must be protected consis-
tently across the Union. Furthermore, minimum standards must be applied
in the provision of appropriate victim services once a crime has been commit-
ted against them. Yet this consistency has not been achieved. This should not
come as a surprise, as victims have traditionally occupied a marginal position
Address correspondence to Theo Gavrielides, Unit 14, Dock Offices, Surrey Quays Road,
Canada Water, London, SE16 2XU, UK. E-mail: T.Gavrielides@iars.org.uk
71
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72 T. Gavrielides
in criminal proceedings in both inquisitorial and adversarial traditions.2If one
looks at the legal systems of different countries, “one seeks in vain a country
where a victim of crime enjoys a certain expectation of full restitution for his
injury” (Schafer, 1970, p. 117).
Founded upon the principles of “respect for human dignity, freedom,
democracy, equality, the rule of law and respect for human rights” (Article 2,
EU Treaty), the EU entered into a process of legislative, institutional, and pol-
icy reforms that would see victims moving from the margins to the center of
the justice system. Alongside these developments the interest in restorative
justice (RJ) reemerged.
This article draws from the findings of an EU-funded project that focused
on the implementation of the RJ articles of the Directive 2012/29/EU of the
European Parliament and of the Council establishing minimum standards for
the rights, support, and protection of victims of crime (“Victims’ Directive”). All
member states must bring into force the laws, policies, practices, regulations,
and administrative provisions that are necessary to comply with the directive
by November 2015. This article argues that alongside these legislative, top-
down regulatory controls of RJ, it must be allowed to continue its development
through innovation and bottom-up structures of community, unregistered, and
localized projects. Although regional and national legislation may have their
role in protecting victims, the mainstreaming, regulation, and state control of
RJ in Europe must be balanced against what Nils Christie identified as its
original intentions of returning conflicts re property.
PROJECT METHODOLOGY
Since the passing of the Victims’ Directive, the EC invested a considerable
amount of resources in order to prepare member states for implementation.
This included the award of grants to EU-wide projects. One of these projects
is “Restorative Justice in Europe: Safeguarding Victims and Empowering
Professionals”3(RJE) led by the IARS International Institute.4It was car-
ried out in 2012–2014 in five EU countries (Bulgaria, Germany, Greece, the
Netherlands, and the United Kingdom), but its findings are EU-wide.
RJE’s general objective was to produce social scientific and practical
results to be directly used by victims and professionals in their national imple-
mentation of the Victims’ Directive. After a thorough review of the extant
literature and existing best practice, over 20 reports were produced shar-
ing this information across Europe. Following this, fieldwork was carried
out with over 272 victims and offenders and 280 professionals working with
victims either by providing victim support, RJ, or criminal justice services
(Table 1).
This gave us the evidence to construct capacity-building materials that
were delivered to 1,131 individuals and 383 organisations in order to help
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Restorative Justice in Europe 73
Tab le 1 : Sampling and research methodology for the RJE project.
Country—Project
Partner
Sample Contacted
(Original)
Sample Reached
(Final)
Research Method
Employed
UK—IARS 39 victims
54 offenders
5,240 contacts
51 experts
24 victims
28 offenders
107 victims and
offenders
24 experts
In-depth
interviews
(qualitative)
In-depth
interviews
(qualitative)
Online survey
(quantitative)
Focus group
(qualitative)
Germany—Bremen
University
245 victims and
institutions
466 victims and
institutions
53 victims and
30 institutions
20 victims and
4 institutions
Quantitative
survey
Quantitative
survey
Greece—EPLO 100 victims
10 professionals
20 victims
10 professionals
In-depth
interviews
In-depth
interviews
Bulgaria—ICR 10 victims
22 professionals
10 victims
22 professionals
In-depth
interviews
Focus groups
(×5)
Netherlands—
Restorative
Justice
Netherlands
(RJN)
197 practitioners/
professionals
197 practitioners/
professionals
20 stakeholders/
experts
10 offenders
(juveniles)
20 experts
2 case studies
(juvenile
prisons ×5)
75 practitioners/
professionals
75 practitioners/
professionals
20 stakeholders/
experts
10 offenders
(juveniles)
20 experts
2 case studies
(juvenile
prisons ×5)
Attitudinal
survey
(qualitative)
Fact finding
survey
(qualitative)
In-depth
interviews
In-depth
interviews
Mini conference
In-depth
observation
with the directive’s implementation. All outputs were translated into Greek,
Bulgarian, Dutch, and German. The target audiences were professionals such
prosecutors, judges, lawyers, police officers, prison and probation staff; RJ
practitioners; and victims of crime and their families.
The RJE introduced a peer review process throughout its duration via two
separate methods. Firstly, an Independent Advisory Group (IAG) was set up
with the aim of providing feedback, guidance, and independent scrutiny. The
IAG consisted of six individuals from various EU countries (one victim, one
ex-offender, two academics, one victim support manager, and one civil society
executive).5
Secondly, the IARS Editorial Board was consulted particularly in relation
to peer reviewing the RJE publications as well as scrutinizing the research
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74 T. Gavrielides
ethics of the fieldwork. The Editorial Board is a standing independent com-
mittee consisting of 22 equality and criminal justice experts from around the
world. In addition to being evaluated as a program in its entirety, specific
outputs (e.g., face-to-face training, online training, conferences, events) were
monitored and evaluated through evaluation forms and online surveys that
were completed by the participants. The data were analysed by IARS and fed
into an evaluation report to the EU.
CONCEPTUAL AGREEMENTS THROUGH THE VICTIMS’ DIRECTIVE
It is important that we have a consistent use of key terms throughout
this article. Hence, certain conceptual agreements are pursued through the
Victims’ Directive. Victim means (1) a natural person who has suffered harm,
including physical, mental, or emotional harm or economic loss which was
directly caused by a criminal offense; (2) family members of a person whose
death was directly caused by a criminal offense and who have suffered harm
as a result of that person’s death. “Family members” are the spouse, the per-
son who is living with the victim in a committed intimate relationship (same-
or different-sex) in a joint household and on a stable and continuous basis;
the relatives in direct line (i.e., parents and children); and the siblings and
dependants of the victim (i.e., other than dependent children).
Victim support services include the provision of information, support,
and advice in relation to the victims’ role in criminal proceedings—including
preparation for attendance at the trial. The services can be public or private,
voluntary or professional. They must be provided to all victims free of charge
before, during, and (for a period) after the criminal proceedings. It is impor-
tant to note that these services must be provided even when there are no
criminal proceedings underway. The directive stresses that advice and infor-
mation should also be provided regarding specialist support services available,
emotional and psychological support, and financial and other issues.
RJ is defined as “any process whereby the victim and the offender are
enabled, if they freely consent, to participate actively in the resolution of mat-
ters arising from the criminal offense through the help of an impartial third
party” (Article 2, para 1.d).
THE GOOD INTENTIONS OF THE VICTIMS’ DIRECTIVE
In its first article, the directive makes its key objective clear—that victims of
crime receive appropriate information, support, and protection and are able
to participate in criminal proceedings equally, safely, and fairly. In all con-
tacts with victim support or RJ services, victims must be treated in a tailored,
respectful, sensitive, and nondiscriminatory manner. The directive makes it
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Restorative Justice in Europe 75
explicit that contrary to what has been the practice across the EU, the victim
must now have a key role in criminal proceedings.
Member states are expected to put in place a specific legal framework to
enable individuals to recognise clearly their rights and obligations. This frame-
work will not exist in a vacuum, but must be constructed taking into account
the general principles of EU law (e.g., equality and nondiscrimination) and the
Charter of Fundamental Rights. Moreover, it is necessary to recall the positive
obligations and existing case-law standards of the European Court of Human
Rights, which contains various references to victims’ rights. Finally, a num-
ber of relevant international standards on victims’ protection that have been
developed by the United Nations and by the Council of Europe must also be
considered. The directive aims to achieve two objectives: (1) to introduce new
rights and obligations and (2) to strengthen rights and obligations that existed
through the Framework Decision.
The main section covering RJ within the Victims’ Directive is Article 12.
Its key objective is to introduce a right to safeguards in the context of RJ.
In fact, when the article was being debated in the European Parliament, a
number of NGOs and restorativists made submissions asking for a more posi-
tive approach toward RJ.6The primary concern remained the revictimization
of the victim in the RJ process. More importantly, the article does not oblige
Member States to introduce RJ services if they do not have such a mechanism
in place in national law. Indeed, the Court of Justice of the EU (CJEU) has
confirmed that member states are not obliged to use RJ for all offenses.7
It is worth pointing out that the article covers RJ whether it is attached
to, running prior to, in parallel with, or after criminal proceedings (pretrial
and post-trial). Furthermore, it may be available in relation to certain types of
crime or only in relation to adult or child offenders and include (for example)
victim-offender mediation, family group conferencing, and sentencing circles.
Primary significance is given to the ability of parties to give free consent
and be duly informed of the consequences of the RJ process. Access to impar-
tial advice is also highlighted as well as the right to withdraw from the process
at any stage. The directive also assumes that any RJ process must also safe-
guard the fundamental procedural rights of the offender. Finally, the directive
expects member states to establish referral arrangements for victims looking
to participate in RJ measures. Again, these will need to be adapted to national
circumstances.
FIELDWORK FINDINGS
The directive was introduced with clear (though to a great extent naïve) inten-
tions that RJ can consistently be implemented throughout Europe through
a top-down structure of government legislation and control. The directive’s
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76 T. Gavrielides
proposers and drafters forgot or were unaware of the historical and philo-
sophical roots of RJ as a community-born ethos (Gavrielides, 2007). They also
ignored the fact that RJ is malleable to locality and the given circumstances
of each victim and crime. This is not merely the author’s assumption but the
general conclusion of the fieldwork findings. Here, we summarize some key
themes.
Let’s Talk about Victims When We Talk about Victims
One of the most consistent findings of the research is how differently the
concept of a victim is perceived across Europe and internationally, and how
much national political and societal circumstances influence the way victim
support services are understood and prioritized by individual governments.
This cannot be taken lightly in the implementation of an EU-wide Victims’
Directive or indeed of any international attempt for more rights for victims.
For instance, if the concept “victim” is used by a member state too narrowly,
this might be an obstacle for the enactment of the rules of the directive.
Looking at how the term victim is understood and is catered for by all
member states, whether this is through the criminal justice or RJ route, it is
possible to distinguish two broad classifications (Table 3). These two classifi-
cations are not mutually exclusive. Classification 1 refers to how broadly or
narrowly a member state interprets the term victim. Classification 2 refers to
how a member state provides victim support services.
Starting with Classification 1, we identify two models. Model 1, within
Classification 1, refers to countries that have developed legal structures, ser-
vices, and policy frameworks that service the victim both in the general
understanding of its notion as well as its specialist context (Austria, Belgium,
Germany, Ireland, the Netherlands, and the United Kingdom). In effect, this
means that their legislative frameworks provide not only for services to vic-
tims of specific groups such as children and women, but also for any person
who has suffered harm as a result of a criminal offense (physical, mental,
or emotional harm or economic loss). Model 2, within Classification 1, refers
to countries which acknowledge victims only in a specific context—namely
as abused women, abused children, and victims of trafficking/terrorism
(Bulgaria, Croatia, Cyprus, Hungary, Italy, Latvia, Lithuania, Poland, and
Spain). These member states have not yet developed victim support services
that are provided in a generic context (i.e., for anyone harmed).
In Classification 2 there are also two separate models, this time focusing on
how generic or specialist victim support services are provided. Model 1, within
Classification 2, includes countries that provide services to victims only as
part of their routine criminal justice service provision (e.g., through the police,
prosecution, legal aid) or as consumers of routine health and social services
(Croatia, Greece, Poland, and Spain). Model 2, within Classification 2, includes
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Restorative Justice in Europe 77
countries that go beyond the customary provision of legal, health, and social
services to victims by providing specialist services either through the govern-
ment arm (e.g., central and local government bodies, public sector providers,
the formal criminal justice system) or by funding community based/civil soci-
ety organizations (e.g., Bulgaria, Czech Republic, Cyprus, Hungary, Italy,
Poland, and Slovakia). Given the above classification, it is not immediately
clear how the Victims’ Directive will achieve and attain a top-down baseline in
relation to minimum standards for protection, availability, and quality control
in the provision of criminal justice and RJ interventions.
State-Based versus Community-Based Victim Support and RJ
Services
Looking at the classification relating to who provides victim support ser-
vices, Model 1 refers to countries that have put victim support services almost
entirely in the hands of the state (Belgium, Croatia, Hungary, and Poland).
In contrast, other countries (Germany, Finland, and the United Kingdom) have
adopted Model 2—whereby support services depend principally on community
based entities. As an example of Model 1, legislation in Belgium—specifically
the Code of Criminal Procedure, the law on police services, and the act concern-
ing the organization of an integrated police—have assigned to criminal justice
agents the responsibility to provide the service immediately after a crime has
occurred. Furthermore, the protocol on the establishment of an integrated vic-
tim policy and the National Forum for Victim Support Policy have improved the
coordination and cooperation between bodies dealing with victims. Moreover,
the Flemish legislation establishes a “quality criteria” and equal accessibility
for every kind of victim to these services.
In Croatia, victim support services are also run almost entirely by the
state. Following the EU Framework Decision 2001, the country has strived to
enhance its legal and institutional framework in relation to victims’ rights. The
procedural legislation of Croatia enforces rights for victims such as the right to
be informed, the right to legal assistance, the right to emotional and psycholog-
ical support, the right to privacy and protection from secondary victimization,
and so on. Also, like many other EU member states, Croatia has legislated
to guarantee the right to financial compensation for damages caused by a
criminal offense. In relation to victim support policy, the Croatian Ministry
of Justice operates together with the National Committee for Monitoring
and Improving the Victim and Witness Support System. The latter body is
responsible for the development of strategies to improve and standardize the
treatment of victims at a national level.
In Hungary, another example of Model 1, the most important piece of
victim-related legislation is the Victim Support Act. According to the act, the
victim support service must be provided not only for those directly harmed
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78 T. Gavrielides
by the crime but also for their family members, friends, and other individ-
uals affected when a crime is committed. However, there is no consistency
between the Victim Support Act’s definition and the narrow concept of vic-
tim contemplated in the Code of Criminal Procedure. Hungary is also one of
the EU countries where a generic support service exists to help victims inde-
pendently of the type of crime that has affected them. It also does not have a
specialized service to deal with victims of particular types of crimes.
In Poland, there is a specialized victim support service for children,
the elderly, and disabled persons, supervised and coordinated by the Victim
Support Network. The police play a major role in providing the service in
many localities, especially to victims of domestic violence. The passing of non-
statutory charters is a practice observed in other member states such as the
United Kingdom, the Netherlands, and Ireland. Although there is not yet any
evidence of their effectiveness, they may constitute a promising practice in
the assistance of the Victims’ Directive implementation and the better pro-
vision of victim support services. In addition, the Polish criminal procedure
permits the participation of the victim as an auxiliary prosecutor, giving a
voice to victims. However, compared to the provision of victim support ser-
vices in other member states (e.g., the Netherlands) these developments seem
currently to be far behind the minimum EU requirements. For example, vic-
tim support services in the Netherlands are provided to any person who has
simply been harmed and may not have been officially included in the crim-
inal justice process. This includes RJ services and psychological and advice
services to individuals who perceive themselves as victims due to a criminal
activity, although that particular activity may have never been prosecuted.
The United Kingdom is an example of Model 2 as the state, in addition to
its own public service provision of victims’ services, also provides financial sup-
port to voluntary and community-sector victim support organizations without
being formally responsible for the direct provision of the service. Nonetheless,
the U.K. government is responsible for developing and implementing policy
on victims through the Ministry of Justice. In order to provide the service,
“Victim Support”—the leading charity supporting victims—is funded through
a grant received from the Ministry of Justice. At the same time, Victim
Support receives charitable income through grants and donations. In a simi-
lar way, the functioning of nongovernmental victim support services in Ireland
relies on the state’s financial support. Since the 1980s, civil society has had a
strong presence promoting victims’ rights and supporting them in their needs.
Nevertheless, public bodies such as the “Support of Victims of Crime” and the
“Victims of Crime Office” exist to monitor the quality of victim support services
delivered by other state agencies and nongovernmental organizations.
However, even in countries where the provision of victim support ser-
vices is mainly in the hands of community organizations (e.g., Finland and
Germany), the state also contributes by providing support for specific groups
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Restorative Justice in Europe 79
of victims. In Finland the state has a double role to play, delivering services to
victims of human trafficking and victims of discrimination, while also fund-
ing civil society for the provision of generic victim support services. In the
Netherlands, 20 victim organizations were merged into one called Victim
Support Netherlands. This offers legal, practical, and emotional support to vic-
tims of various kinds. This organization serves as a platform to coordinate and
facilitate the service across the country, working directly with the state and
its agents. On the other hand, Germany can be seen as an example of decen-
tralization of the service. In this country, the functions developed by the public
sector to support victims are different depending on each state. For instance,
the German Ministry of Justice is only responsible for the coordination of vic-
tim support in the state of Mecklenburg-Vorpommern. The remaining states
in Germany are not subject to a national coordinator. In Denmark, there is a
national coordinator that facilitates a generic victim support service provided
through different police districts.
Other EU countries have adopted a unified or national victim support
model. This is not a common trend across the EU and it mainly refers to the
Netherlands, Denmark, and the United Kingdom. In some countries (United
Kingdom, Germany, Netherlands, Ireland) the state is responsible for both
funding and providing victim services directly through their ministries and
public bodies. The Ministry of Justice seems to be the central government
department in most member states that is tasked with coordinating respon-
sibilities for victim support services. In many EU countries, victim support
and RJ services rely exclusively on the community and practically no financial
support is given by the state (e.g., Bulgaria, Cyprus, Hungary, and Poland).
However, there is a long way to go before victim policy supports equally
state-based and community-based interventions. Fears are expressed that RJ
provision is gradually becoming a state monopoly. For instance, one of the
themes that dominated the discussions at the U.K. RJE focus group with
experts related to the current development of RJ. The participants claimed
that RJ is currently being promoted by government and certain government-
funded organizations “through top-down structures that control its agenda and
forms of manifestations” (quote from a practitioner). This was not thought to
be in the interest of the victim, while concerns were expressed about the need
to first change the criminal justice culture before the Victims’ Directive can be
genuinely implemented.
A senior probation manager said during this focus group that RJ is being
promoted within their Probation Trust as “a quantifiable commodity that must
be compared against existing practice. This takes RJ away from its key prin-
ciples.” Similarly, another probation officer said, “In our RJ unit, RJ is as
top-down as you get. The research on RJ is pointing in one direction—i.e., it
needs to be bottom-up. But all our funding comes from NOMS [government]
and therefore it is hard to change the existing culture. This ultimately does
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80 T. Gavrielides
not serve victims.” The research with professionals from Greece (where RJ is
provided primarily through the law) as well as from Germany supports the
above finding.
This concern was also validated through the fieldwork with victims. For
example, one victim who progressed to becoming RJ practitioner said “I
stopped implementing RJ as the government is now seeing it as a way to
get youth to say sorry for their actions.” Another victim said “my overall con-
cern about RJ is its further implementation without consideration of victims’
human rights and the power relations, including economics, that exist in soci-
ety. For me, as a white, middle class professional with two degrees, getting a
poor, black kid to say sorry seems an insult to justice and the injury that was
caused.”
Indeed, it is questionable whether yet another piece of legislation such as a
directive can encourage implementation back to its original path and direction.
In fact, it is troubling that in its very articles the directive encourages strict
regulation and standardisation of RJ as if it is part of the same system that the
state owns and controls. The intention to protect victims overlooks the nature
of RJ as a non–state based intervention that falls outside of the traditional way
of delivering justice. This, of course, does not mean that RJ cannot be provided
in parallel to the criminal justice system. It also means that protection can
indeed be initiated but not through the same legal structures that the state
provides for its own justice methods (see Gavrielides & Artinopoulou, 2013).
Interviewed practitioners seemed to agree that RJ should be provided both
within and outside of the criminal justice system and that this should include
partnerships with community and civil society organizations, which seem to
have taken on the principal burden in the implementation and innovation
of RJ in most EU member states. RJE participants in the United Kingdom,
the Netherlands, and Germany also expressed the view that there are already
plenty of adequate legislative and institutional arrangements for the protec-
tion of victims in the criminal justice and RJ process. Nevertheless, there is a
considerable gap in the implementation of these intentions. This should serve
as a lesson for the directive and its implementation. They also pointed out that
the real challenge is not the passing of these regulations at the national level,
but their enforcement.
Relating also to the issue of enforcement, there was consensus across
the RJE participating countries that there is almost no information on the
directive’s implications—while most relevant agencies are even unaware of
its existence. Practitioners and other professionals who took part in our pro-
grams also seemed to agree that it is questionable whether legislation alone
can help with the implementation of RJ. In fact, attempts and resources
directed into legislative initiatives may distract from the actual issue, which
according to most revolves around community engagement and community
leadership.
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Restorative Justice in Europe 81
It was concluded that there are strong power structures within the victim
and RJ movements as well as the criminal justice system that make victims
and offenders suspicious of RJ processes. Gatekeepers often treat victims in a
patronizing or tokenistic manner despite the existence of guidance and regu-
lations. In fact, there are fears that this deterioration will continue as funding
is being rolled out to mainstream RJ too quickly and without consideration of
its complex, local nature.
Standards and Standardization
The Victims’ Directive is strong on standards. It is hoped that by being
clear and strict, the directive can create a baseline across Europe for the safe
delivery of victim support, criminal justice, and RJ services. The burden is
principally placed on state services to respect these standards. To understand
the role of the state, a distinction must be made between two large groups of
victim support services.
According to Model 1, Classification 2 (see Table 2), providers of the afore-
mentioned services are components of the criminal justice procedure, screened
and regulated as part of the justice mechanism. This will relate to their qual-
ifications as civil servants, lawyers, judges, prosecutors, social workers, police
officers, psychologists, and so on. Each member state has its own legal frame-
work for the recruitment and development of criminal justice, civil service,
Tab le 2 : Conceptualizing the term “victim” across the EU.
Classification 1:Model 1: Member states that have developed legal and
policy structures that provide support services to the victim,
the latter interpreted both in a general (any victim of crime)
and specific contexts—e.g., victim of terrorism (Austria,
Belgium, Germany, Ireland, the Netherlands, and the United
Kingdom).
How broadly or
narrowly the
term victim is
interpreted
Model 2: Member states that have laws and provisions only for
specific types of victims (e.g., children, women, victims of
terrorism) and do not cater more generally for any person
who has been harmed due to crime (Bulgaria, Croatia,
Cyprus, Hungary, Italy, Latvia, Lithuania, Poland, and Spain).
Classification 2: Model 1: Member states that provide services to victims only
as part of their role in the criminal justice process (e.g., legal
aid, prosecution) or as consumers of health and social care
services (Croatia, Greece, Spain, and Poland).
Types of services
provided to
victims
Model 2: Member states that go beyond the customary
provision of victims’ services through their legal, health, and
social care arms by providing bespoke and specialist
support either through their own institutions or by funding
community-based and civil society organizations (Bulgaria,
Cyprus, Czech Republic, Hungary, Italy, Poland, and
Slovakia).
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82 T. Gavrielides
and public sector staff. It has to be stressed here that these are general civil
servants or criminal justice agents and not exclusive victim support service
providers. The RJE research suggests that the majority of services to victims,
particularly those provided within the criminal justice context (legal aid, com-
pensation, witness protection, and so on) are provided through criminal justice
agents. Put another way, where victim support and RJ services are exclu-
sively provided by agents of the criminal justice system—such as probation
staff, prosecutors, and the police—their training and the standards that they
need to respect are very much defined by their professional bodies and the
agencies that employ them. In general terms, the state feels that it has an
obligation to oversee RJ and victim support services only when (1) these are
provided directly by its public arm and (2) their funding is provided directly by
government departments.
According to Model 2, Classification 2 (see Table 2), providers of the
aforementioned services are independent (especially in relation to support
that falls outside the criminal justice process). These are very much unreg-
ulated and unmonitored by state bodies. Some organizations may develop
their own quality, accreditation, and training standards and frameworks. They
then self-regulate and self-monitor to ensure compliance (e.g., see Weisser
Ring in Germany, Victim Support in the United Kingdom, Victim Support
Netherlands, Victim Support Finland, and INAVEM in France). Where there
is a funding relationship, the sponsoring government body may require cer-
tain standards that in most cases reflect human rights and other criminal
law legislation. However, this is not uniform across member states. This find-
ing supports my general conclusion that legislation alone cannot and will not
achieve the stated intentions of the directive in relation to RJ and victims’
rights.
Furthermore, the registration of organizations as specialist victim support
and RJ organizations cannot be a matter of government control. Most countries
deal with this under general guidelines and legislation for NGOs. For exam-
ple, if a victim support service is registered in a country as a charity, NGO, or
nonprofit, then the general rules will apply. If the service falls within a spe-
cialist profession such as legal or medical, then the general rule is that the
relevant regulator (e.g., the Law Society in the United Kingdom for legal pro-
fessionals) would expect registration in order for services to be legitimate and
accredited. Regulators are independent of government but controlled under
national legislation and national standards. There are no regulators of victim
support services in any member state. Data from our research concluded that
an attempt to impose registration of RJ practices in the United Kingdom has
backfired and a lot of criticism has been received both in terms of the inter-
ference of government and the lack of independence of the registering body
(Gavrielides, 2013). The lack of transparency and the many issues that are
at stake for the registering body, as well as those expecting to be registered,
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Restorative Justice in Europe 83
has raised concerns in terms of how genuine the process is and what criteria
are being used. It is also a costly process that excludes and indeed disregards
the voluntary nature of these services, which are not carried out for profit but
largely as part of civic society breaching a gap in public service provision.
This is not unique to one county. In Belgium, for instance, “Services for
Victims of Crime must carry out tasks and respect principles enacted by
the law ...[and] have to apply for official recognition with an official notice
from the Ministry of Welfare, Health and Family of the relevant community.”8
Similarly, in Estonia, the Victim Support Act provides some guidance on the
requirements for a victim support service provider, but again the requirements
are rather broad. In France, the approving of associations that deliver victim
support services is provided for by law—but the procedure for obtaining a ser-
vice agreement from the state is merely regulated via a circular and is not of a
legislative nature. Arguably the most stringent regime in terms of registration
is in the Netherlands, where the Justice Subsidies Act lays down the tasks in
the field of victim support. Victim Support Netherlands then receives funds
from the state to implement and to formulate quality standards.
An important caveat that cannot be stressed enough is that in all member
states victim support service providers are heavily reliant on volunteers. This
is also the case for RJ, which has traditionally relied on volunteer practitioners.
The examples of the Netherlands and the United Kingdom are striking, as over
80% of the workforce of victim support and RJ service is voluntary. The notion
of “volunteer” must not be confused with that of “amateur.” Volunteers can be
more qualified to provide victim services than paid staff. However, the need to
continue attracting a voluntary workforce is always counterbalanced against
the somewhat-limited expectations that the state can have for individuals who
give their time freely to support others. One good example of providing tai-
lored support to volunteers is found in Denmark, where supervision is provided
locally via regular meetings.
CONCLUDING THOUGHTS
It took humanity two world wars and a number of other civil conflicts to come
to the table and agree to minimum standards of behavior for states, includ-
ing in criminal justice. We called them “human rights” and recorded them in
international documents such as the Universal Declaration on Human Rights
(UDHR). Europe and its union used these foundations to introduce the Victims’
Directive to bring uniformity in the protection of victims’ rights in the criminal
and RJ processes.
Despite good intentions, the EU assumes that policy, legislative, and insti-
tutional reforms will take place in member states that will bring uniformity
in the protection of victim’s rights in the criminal and RJ process. I have
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84 T. Gavrielides
concerns about this expectation for three principal reasons. First, the cultural,
societal, and historical traits of our criminal justice systems are factors that
may hinder this intention (Gavrielides 2011). Second, Europe and the inter-
national community are faced with a global financial crisis. Asking states to
make reforms during a climate of financial austerity might mean additional
pressure. Of course, this is not to suggest that reforms cannot help cut down
the spiralling costs of criminal justice. But this is not a narrative that has been
developed by the EU, which will need to first convince local politicians and com-
munity organizations (Gavrielides, 2008). Thirdly, victim and RJ services exist
largely in the community and are delivered not just by state-based institutions,
but civil society and community-based organizations. Our findings indicate
the significant role that civil society plays in the provision of victim support
services. Austria, Denmark, Germany, Italy, Latvia, Malta, the Netherlands,
Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom
have a number of key victim support services being provided through non-
governmental organizations and through partnerships with the community.
In fact, some member states such as Malta do not provide victim support ser-
vices through any ministry or central government department. Particularly in
relation to RJ, its historical and philosophical community-born roots must be
considered. Legislation alone will not suffice. A wider and inclusive debate is
needed. This is also a debate for the wider international community and not
just Europe.
In going forward, the Victims’ Directive has a key role to play in creating
a baseline both in terms of how the term “victim” is understood by member
states (in general and in specific contexts) as well as how services are struc-
tured and delivered to both categories of victims (general and specific, Table 2).
Our research points out that while the role of the state will continue to vary
across member states in the provision, regulation, and control of victim sup-
port services, RJ must be supported to reposition itself as a community-born
ethos. Our research also points out that any directive must respect the context
within which it is implemented.
A mixed model of service provision through the state arm and community
organizations seems to be the way forward both in terms of increasing diversity
and allowing completion but also in avoiding a monopoly and a one-size-fits-all
approach. Top-down structures that provide services to victims in an exclu-
sive manner are not recommended, and this includes controlling funds and the
registration of victim support and RJ services.
Acknowledging that victim support is one of the key areas in which
European citizens are active and where civic engagement becomes live is key
in setting up structures both within public institutions and in communities
that support, train, and reward volunteers who provide RJ services to victims
either in organized or ad hoc ways. Involving volunteer providers (individuals)
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Restorative Justice in Europe 85
directly in the setting up of victim support and RJ policies is also recommended
as a good practice.
Although minimum standards and the debate on quality control of RJ
is desirable, the close control of its providers, the registration of its practi-
tioners, and the repeat funding of the same organizations will kill innovation
and take out the very heart and soul that keeps restorative programs staffed
and running with minimal support from the state. RJ is not delivered at
national and abstract levels. It is a concept that takes meaning and gains
significance only when it has addressed the needs and the imbalances that
have been distorted at the individual level. Put another way, RJ is not a pro-
cess that can be standardized so that it can be initiated through automated
structures and concluded with a guaranteed result. It may involve consider-
able timescales and shifting goalposts. There seem to be strong interests and
entrenched top-down management of restorative practice, particularly as more
funds become available for its delivery. The directive provides a framework for
minimum safeguards, but our research did not give us clarity as to how the
power structures within the various movements can be managed so that the
directive is successfully implemented. While the research alerts us to this con-
clusion, hopes are raised that the legislative nature of the Victims’ Directive
may indeed force agencies to think differently—including empowering victims
directly to seek justice and their protected rights in the RJ process. However,
the directive must not become a top-down mechanism that will turn against
itself and root out the community heart of RJ. How we empower volunteers
and paid professionals to deliver RJ in line with the directive will be a key
question in the years to come.
Attempting to interpret the findings of our research, we conclude that vic-
tims and offenders feel that the existing “gatekeepers,” entrenched practices,
and mind-sets are the true barriers in the implementation of the directive’s
intentions. The practitioners and other experts who took part in our research
confirm this conclusion. In fact, it seems that the more interest government
and funders are showing in RJ, the more defensive gatekeepers and entrenched
practices become. This must be read as a warning for those wishing the
Victims’ Directive to succeed. As many victims and practitioners said to us,
“legislation alone will not do.” In a shifting policy and legislative environment
where the EC is determined to bring about a change in how victims are served
both within and outside of the criminal justice system, victims’ voices must be
heard.
NOTES
1. http://ec.europa.eu/justice/criminal/victims/index_en.htm
2. The adversarial system is described as “a contest between two equal parties, seek-
ing to resolve a dispute before a passive and impartial judge, with a jury (‘the people’)
pronouncing one version of events to be the truth” (Jorg, Field, & Brants, 1995, p. 42).
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86 T. Gavrielides
On the other hand, the inquisitorial system is described as “the investigation of an
event, and the persons involved, by the State with a view of establishing the truth”
(Jorg et al., 1995,p.42).
3. The project website page is http://www.rj4all.info/content/RJE.
4. http://www.iars.org.uk
5. See http://www.rj4all.info/content/RJE-IAG.
6. See for instance http://www.iars.org.uk/content/restorative-justice-new-eu-direct
ive-victims-concerns.
7. CJEU rulings in cases C-205/09 Eredics34 and Joined Cases C 483/09 and C
1/10 Gueye/Sanchez35 interpreting Article 10 FD on mediation.
8. Belgium, Decree concerning the general welfare (Décret relatief à l’aide sociale
générale, Moniteur Belge 17 fevrier 1998), 19 December 1997.
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