Restorative Justice and Technology

Restorative Justice and Technology

Pedro Miguel Freitas (Universidade do Minho, Portugal) and Pablo Galain Palermo (Max Planck Institute for Foreign and International Criminal Law, Germany)
Copyright: © 2016 |Pages: 15
DOI: 10.4018/978-1-5225-0245-6.ch005
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Abstract

In civil law countries, criminal justice is beginning to experience a shift from retributive justice towards restorative justice. Amongst other goals, restorative justice aims to give the victim a pivotal role in the administration of justice, which until now, with the traditional criminal justice, has not happened at a desirable level. It covers very different processes, but victim-offender mediation is certainly the most established one. Although an online version of the victim-offender mediation model is yet to be implemented, we believe that it could be a relevant alternative to an offline setting. It is nevertheless clear that further studies are necessary to fully comprehend the extent of the structure and implications of a ODR system for criminal conflicts.
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Introduction

Conflict resolution is a multidisciplinary and an interactive field of knowledge, where the theory of justice and even criminal law has an important role to play. The conflict between a citizen and law should not be considered solely as a problem between a person and the State1. The progress and changes caused by technological advances need to foster a return or approximation to the interpersonality nature of conflicts’ resolution. After the unthinkable crimes against humanity that have been committed since the second war world, Hegel’s thought of human progress based on the necessary sacrifice of some victims is neither valid nor satisfactory (Reyes Mate, 2011; Galain Palermo/Garreaud, 2012). Victims became visible and, according to Walter Benjamin, justice must be done through the compensation of injustice and the reparation of damages committed against them. Habermas advocates for the necessity of “communicative actions” and for the resolution of social conflicts based on dialogue, encounters, and communication. This new philosophical consideration of justice demands new theories of justice.

Criminal justice is historically assumed as a State’s monopoly. It is a social control method that relies on the imposition of punishments (retribution) with a preventive purpose. Thus, the main purpose of a criminal system is not to punish someone who committed a crime simply because he committed such a crime, but to prevent it from happening again. This is the idea behind current criminal justice systems in most civil law countries, such as Germany, Spain or Portugal.

Even though criminal prevention can be described as promotion of avoidance, by means of punishment, of the (re)occurrence of crimes and of the endangerment or injury to legal goods or values (Rechtsguts), its description would be incomplete without mentioning that it encompasses four distinct and intersecting dimensions – general prevention, special prevention, positive prevention and negative prevention. Positive general prevention focuses on the reaffirmation of the value of the legal norm against the unlawfulness of a crime (Hassemer, 1998, 2002; Streng, 1991), while negative general prevention (deterrence) happens when the State acts on the population through intimidation, deterring them from committing crimes, being the punishment of the offender a deterrent example to others. Special prevention can operate in a positive or in a negative fashion. There is a positive special prevention (rehabilitation) when the State aims at the (re)socialization of the offender and negative special prevention (incapacitation) when it regards the offender as a source of danger which needs to be segregated and separated from the community.

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