In the field of alternative conflict resolution methods, Organic Law 1/2025, of January 2, on measures on the efficiency of the public justice service has been widely recognized by the regulation of mediation in the civil sphere and Commercial as a general procedural requirement to initiate a judicial procedure.
This tendency towards dejudicialization to decongest the courts has also had their impact on the criminal field: the restorative justice procedure is regulated). However, the proposal to incorporate a repair justice system into the contemporary criminal justice system is not something new.
Within the framework of the protection of crime victims, the remission of restorative or restorative justice has been the subject of regulation in our international and European regulations since the end of the 20th century. The declaration on the fundamental principles of justice for victims of crime and abuse of power (UN, 1985) already collected the use of dispute solution mechanisms to “facilitate conciliation and reparation in favor of victims”; Later, the Restorative Justice Programs Manual (UNOCD, 2006) would be published.
In the field of Community Law, the Directive 2012/29/EU of the European Parliament and the Council of Europe, which establishes the minimum norms on the rights, support and protection of crime victims, defines repairing justice as “any process that allows the victim and the offender actively participating, if they give their consent freely for it, in the solution of the problems resulting from the criminal offense with the help of a third party impartial. “
This resolution came to replace the 2011/220 Framework decision, and would be the precursor of others equally relevant in the field (despite its non -binding nature), such as the different recommendations for the development of restorative models in the criminal legal system.
In our country, this directive would be incorporated through Law 4/2015, of April 27, of the Statute of the Victim of Crime. Its article 5.1 k) recognizes as the right of every victim to be informed of the “restorative justice services available, in cases where it is legally possible”, and its article 15 develops the requirements for the configuration of this means of repair. Although there are different projects in Spain that offer restorative justice services in intrajudicial, penitentiary and community areas, no regulation of the restorative justice procedure, so far, did not exist within our criminal legal system.
The 1/2025, of the efficiency of the justice system, introduces, between the modifications of the Criminal Procedure Law, a new ninth additional provision on restorative justice, setting the procedure for its integration, as well as its guiding principles. Roughly, regulation is as follows:
It establishes the first section that “restorative justice will be subject to the principles of voluntariness, gratuity, officiality and confidentiality.” Voluntariness implies that none of the parties can be forced to participate or suffer negative consequences for refusing to do so.
The gratuity ensures that access to restorative justice does not imply an economic burden for victims, falling their provision in public administrations. The official reinforces its intrinsic character to the criminal process and not as an alternative mechanism. Confidentiality guarantees that the information obtained in the procedure cannot be used later without the express consent of the parties.
As for the procedure, its beginning must be preceded by clear information to the parties about their rights and the possible consequences; And the referral to the restorative justice is promoted by the judicial body, ex officio or the instance of the party, provided that the law does not exclude it and without interrupting the practice of the indispensable proceedings in the instruction phase.
For its part, in the field of minor crimes, submission to this procedure interrupts the prescription of criminal offense. The maximum period for its development is three months, extendable for an equal time.
Regarding the procedural effects of the possible agreement, the consequences vary depending on the phase in which the judicial procedure and the criminal type are.
Among other measures, it can lead to the archive of the case in minor crimes, the dismissal in private crimes or in which forgive in the suspension of the deprivation of liberty.
Restorative justice is presented as a complement (and not an alternative method) of the traditional or classic criminal justice system, and in which the prevention function is governed by the principle of opportunity. We cannot ignore that the judicial response is increasing of the offender.
In this context, the incorporation of restorative justice to the criminal procedure implies an advance in the achievement of these objectives, benefiting both victims and perpetrators and also contributing to the necessary extent and efficiency pursued by the norm.
Now, as we pointed out when analyzing the attenuator of confession in the preceding gallery, it should not fall into the instrumentalization of this process with the sole purpose of obtaining reductions from penalties by repairing the damage. A specific regulation is fundamental that guarantees its faithful application with the spirit that its own name represents: repairing the damage in a fair way.
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