Can Criminal Law Instruments Implement the Concept of Restorative Justice?

Introduction

Although restorative justice (further also referred to as RJ) has been the subject of numerous publications, both Polish and international, the concept continues to be a source of inspiration for legislators and legal researchers. Perhaps one reason for its vitality is its complex genesis – restorative justice derives from the combination of theoretical reflections of criminologists and victimologists and traditional practices of various communities all over the world [1, 2, 3]. The fact that the idea of restorative justice has become embedded in so many different national laws presumably explains why this concept is not homogeneous.

While the relationship between restorative justice and a reaction to a violation of social principles, or an offence and a resultant conflict, is indisputable, both retributivism and utilitarianism are questionable [1, 4, 5]. In lieu of or in addition to the penalty imposed by a court on behalf of the state, the idea is to bring the "stolen conflict" back to its parties and concentrate on eliminating the negative consequences of an offence [6, 7]. One of the approaches to RJ concentrates on a meeting between a victim and offender, developing a common solution and achieving reconciliation; whereas another one focuses on victim satisfaction and reparation of damage caused by the offence, even non-consensually [5]. On the other hand, J. Consedine highlights the idea of "common good", which is to be achieved by engaging the local community, i.e. people directly involved in the conflict, in solving it (2004).

However, as rightly observed by P. Zawiejski, the essence of restorative justice lies in its humanistic aspect – a meeting centred on the conflict or restriction of this concept to mere compensation are not legitimate (2016).

In the light of the above observations on the underlying principles of restorative justice, the question arises whether these principles can be implemented in criminal procedure by means of instruments of criminal law. M. Płatek distinguishes restorative justice from traditional criminal justice in the following manner: "Criminal justice does not stand in contradiction to restorative justice; both are focused on justice. What sets them apart is their view on the essence of crime and essence of the judicature" (2005). The questions which need to be addressed are whether the author accurately captured the differences and whether the differences in such important matters fade away in view of the enigmatically defined objective of the achievement of justice.

With the maximalist approach, restorative justice cannot be reconciled with the current model of criminal justice, since it assumes complete reconstruction of not just criminal law and procedure, but also social structures. On the other hand, representatives of a more moderate approach allow for a compromise [3]. Coexistence of state judicature and restorative justice institutions was anticipated by H. Zehr, one of the "godfathers" of the restorative paradigm. His postulates aim to give the victim and local community their rightful place in the system of responding to crime [8, 9]. Attempts to "reconcile" the postulates of restorative justice and the underlying principles of the continental model of criminal law and procedure are made in the legislative works of European countries [10]. In line with the spirit of RJ, the offender should assume responsibility for the offence committed and bear the burden of repairing the harm done [11, 9]. While the burden may take the shape known to classical criminal law, penalty is not central to restorative justice. Moreover, H. Zehr warns against using the postulates of restorative justice to justify the imposition of penalties that are only seemingly in the interest of the victim (1990).

Assuming that what is crucial for restorative justice is the meeting between the parties and arriving at a solution to the conflict between them, and not solely repairing the damage, it becomes clear that this result cannot be achieved by way of a court decision [6]. The attachment to the state's ius piuniendi prevents the adoption of the restorative justice model. Given the above, we must subscribe to P. Zawiejski's view that such conclusions do not preclude the application of solutions typical of restorative justice alongside, or even as part of, criminal procedure. The resolution of a conflict between the offender and victim and repair of damage can theoretically be achieved by way of a verdict of a criminal court (2016). The question is whether the institutions known to the continental criminal law can aid processes typical of restorative justice?

The Polish legislator also made reference to restorative justice by including the settlement between the offender and victim among sentencing directives. Our intention is to conduct a more detailed examination of this directive in relation to the essence of RJ, and then to review and analyse the solutions adopted in the Polish criminal law in terms of their usefulness for the implementation of the objectives of restorative justice. Article 53 § 3 of the Polish Criminal Code provides that "in imposing the penalty, the court shall also take into consideration the positive results of the mediation between the injured person and the perpetrator, or the settlement reached by them in the proceedings before the state prosecutor or the court". The mention of mediation resulted in the fact that this provision is unequivocally linked with restorative justice and interpreted accordingly. The norm derived from Article 53 § 3 CC is sometimes referred to as the conciliation directive [12].

A preliminary point to note is that the mediation settlement is not the only element allowed for in Article 53 § 3 CC. Interestingly, it is not even expressly mentioned there. The literature on the subject quite commonly assumes that what is required for a mediation procedure to be considered successful is reaching a settlement (and not just its implementation) [13], or even achieving "any outcome of mediation that is accepted by parties to a conflict, in particular the victim" [14, 15]. The phrase "the court shall also take into consideration the positive results of the mediation" means a contrario that the court should not take into account the negative results [16, 17]. The final part of Article 53 § 3 CC also points to settlements reached before a court or state prosecutor, but not before a mediator. The eventuality that the parties will reach a settlement before the authorities conducting proceedings can be interpreted as meaning that a spontaneous settlement between the parties may be taken into account, in particular in circumstances where organisational considerations make professional mediation procedures impossible [18]. Another possible interpretation of Article 53 § 3 is that settlements between the parties reached with the involvement of the local community can be taken into consideration, which would be to a large extent in line with the tenets of restorative justice. Nevertheless, this is not the practice in Poland (Bek 2015). It may be conceded that, for the purposes of the conciliation directive, the concept of settlement has a slightly broader meaning than the one given to it in civil law, and it also encompasses a written apology to be accepted by the injured party, but does not involve any obligation to redress the damage or provide compensation [19]. In fact, the directive expressed in Article 53 § 3 CC does not accentuate compensation. Instead, it highlights the settlement between the parties, which suggests the acceptance by the Polish legislator of the primacy of the meeting referred to above.

It also appears important that the court take into account the settlement and other positive results of mediation. The conciliation directive means that the settlement between the injured party and offender is a critical factor shaping the operation of criminal law. A number of publications rightly emphasise that the court is not bound by the contents of the settlement, but it should instead attempt to shape its decision in such a manner that, if possible, it does not impair the settlement between the parties [20, 21, 13]. It should be also recalled that the court must simultaneously meet the requirements of other – at least equally important – sentencing directives, such as the directive of the degree of the offender's guilt, or the directive of the degree of social harm [12]. Therefore, even at this stage, it is clear that during criminal proceedings the victim and offender are not in charge of the conflict between them. The conflict "stolen" from them is "loaned" to them for the duration of the mediation procedure. However, once mediation is over, the fate of both parties (in particular the offender) essentially depends on the court. While the parties may make themselves mutually bound by the provisions of their settlement, yet they cannot bind the court with these arrangements. The terms of the settlement become a moral and civil obligation for the parties. With several exceptions, the settlement, or even reconciliation of the parties, redressing all damage, or the overall conflict resolution, do not necessarily imply impunity for the perpetrator.

The fact that the final decision as to the shape of the criminal law reaction is made by the court does not exclude the possibility of fulfilling the wishes of the parties, as expressed in the settlement, and does not prevent the application of the compensatory principles of restorative justice. Of all the different solutions and measures known to criminal law, those in which repressions against the offender are pushed into the background and priority is given to avoiding or repairing damage caused by the offence merit special attention. Compensatory and probative measures offer some space for RJ. The institution of active repentance may also be of interest in this regard, given that it rewards those perpetrators who have "voluntarily prevented damage that could result from a prohibited act or eliminated the damage already caused".

Probative Measures

Under Polish law, measures connected with placing the perpetrator on probation may be criminal law's reaction to an offence committed by the offender. These measures include conditional discontinuance of criminal proceedings, conditional suspension of the execution of a penalty, and conditional release from serving the remaining part of the sentence of deprivation of liberty. The common denominator for these institutions is that they reduce penal repressions resulting from the crime committed [22]. A reduction in repressions is conditional in nature, though, in the event where the results of the probation are positive, the repressions are remitted for an unspecified period of time, whereas the negative results imply that the repressions will be applied to their full extent. Although some authors maintain that probative measures weaken the retaliatory function of criminal law [22], this solution may in fact bring numerous advantages. Shifting the centre of gravity to the protective function of criminal law, with special regard to individual prevention necessary to formulate the criminological and social prognosis, appears to offer much broader perspectives for the use of restorative justice.

Putting the offender on probation, in particular when it is accompanied by the simultaneous application of semi-custodial elements, is largely disconnected from simple repression or re-establishment of justice, since it instead concentrates on prescribing the probation period in such a manner as to ensure that the offender will abide by the law in the future. The normative shape of probative measures allows for support and supervision of the offender through a probation officer and probationary obligations. Assigning these two functions the importance they deserve ought to take into account the legitimate interests of the victim. Moreover, in some cases, ensuring that the harm caused is redressed is a prerequisite for the application of probative measures. In this regard, the question arises as to whether the Polish criminal law rules governing the placement of the perpetrator on probation support the claim that the road to the implementation of the postulates of restorative justice is open in this area.

A further analysis of this issue must be preceded by a review of the various probative measures. This is due to the fact that the normative status quo: conditional discontinuance of criminal proceedings, conditional suspension of the execution of the penalty of deprivation of liberty, and conditional early release are not equivalent institutions.

In the case of conditional discontinuance of criminal proceedings, the imposition of the penalty of deprivation of liberty is conditionally suspended, although the perpetrator has been found guilty of committing an offence [22]. In order for the discontinuance to be applied, it is necessary to establish the circumstances regarding the attribution of blame to the offender. The offence in question must not constitute a considerable violation of the legal order – it must not be subject to a penalty exceeding 5 years of deprivation of liberty, the perpetrator's guilt and social consequences of the act committed are not significant, and the circumstances of its commission do not raise doubts. In the event that criminal proceedings are conditionally discontinued, penal repression is mitigated to the greatest possible extent: despite the committed offence, the perpetrator maintains a clean criminal record. Given that the profits are so large, the legislator sets out a strict requirement that the perpetrator cannot have any previous convictions for an intentional offence.

It should be emphasised that the imposition of obligations on the offender is, as a general rule, optional with one exception: the obligation to redress the damage. The offender shall be required to redress the damage done in whole or in part if any damage was done and if so, it was not redressed before the court's decision to apply conditional discontinuance of the proceedings. As a result, it may be deduced that in the case of conditional discontinuance of criminal proceedings, the legislator created an instrument for solving the conflict between the victim and offender. A person who suffered a loss in interest protected by criminal law has a better chance of compensation since, first of all, the obligation to indemnify is imposed ex officio, and secondly, evading an obligation may lead to the reinstatement of conditionally discontinued proceedings. Given that there are more obligations that can be imposed by the court on the offender potentially leading to the resolution of the conflict caused by the offence, such as apologising to the injured person, it may be concluded that the conditional discontinuance of criminal proceedings is theoretically capable of fulfilling the postulates of restorative justice.

The question is, however, whether the instruments laid down for conditional discontinuance and intended to respect the interests of victims and their right to have the damage caused by the offence redressed are effective, or whether they are of a purely formal nature. It appears that assuming that the former is the case is likely to draw valid objections. First of all, the victim has no real influence on the court’s decision on the application of conditional discontinuance of criminal proceedings. Secondly, Article 67 § 3 CC provides for the obligation to redress the damage in whole or in part. Therefore, it is important to establish in which situations the court may decide to order partial restitution: the offender's difficult financial situation, his diminished responsibility, or specific circumstances of the commission of the crime. All these circumstances concentrate on the offender while overlooking the needs and legitimate interest of the victim, which is not conducive to conflict resolution. Thirdly, the legislator associates the negative outcome of probation with evasion of the reparation of damage by the offender, and not an actual lack of restitution. In other words, the perpetrator intentionally strives to not fulfil his obligations [23], although it is possible for him to do so. As a result, the potential reinstatement of conditionally discontinued proceedings due to e.g. evasion of restitution is closely connected with the offender and his conduct during the probationary period, while the role of the victim is marginalised in this process. Therefore, even if the victim negotiates satisfactory terms of a settlement before the court's decision to conditionally discontinue the proceedings, and the court then incorporates these terms into its judgment, the control of the probation period will not include an evaluation of the performance or failure to perform the terms of the settlement.

Conditional suspension of the execution of a penalty consists in voluntary resignation from the execution of the penalty of deprivation of liberty for the term of probation. This means that the repressions imposed will not be executed if the term of probation is successfully completed. Conditional suspension may be granted to persons sentenced to deprivation of liberty for up to a year, provided that the perpetrator was not sentenced to imprisonment at the time of committing of the offence. Its essence lies the conviction that despite not serving the penalty of deprivation of liberty, the offender will in the future observe the legal order. If conditional suspension is granted, the gains for the perpetrator are quite significant: although the offence he committed is in the opinion of the court serious enough to pass a sentence of deprivation of liberty, the sentenced individual does not in fact have to serve it. The conditional permission to remain at liberty, in one's family and professional environment, should as a rule be conducive to greater restitutive capabilities of the perpetrator, in particular with respect to finance. During the term of probation (1-3 years), the court may appoint a probation officer to assist and control the conduct of the offender and may obligate the offender, for example, to apologise to the victim, provide support for another person, or refrain from contacting the injured person. Furthermore, pursuant to Article 72 § 2 CC, the court may obligate the perpetrator to pay a consideration or redress the damage in whole or in part, unless it has prescribed a compensatory measure. Also in this case did the legislator provide for institutions that could potentially fulfil the postulates of restorative justice. The injured party has no influence on the decision to conditionally suspend the execution of a penalty. His/her consent or lack thereof, as well as any potential arrangements between him/her and the offender with respect to ways of remedying the damage and compensating the victim for the harm caused by the offence, have no binding force on the sentencing process, although obviously they may be taken into account. Similarly, restitution may concern only part of the damage, and decisions in this regard will be conditional on reasons attributable solely to the sentenced person and will not take into consideration the situation of the victim, or the scope of any settlement between the victim and offender. On the whole, such a form of probation can in no way be regarded as conducive to the fulfilment of the postulates of restorative justice.

As regards the last measure, it should be pointed out that conditional release makes it possible to release a convicted person from serving the penalty of deprivation of liberty after he has served a specified part of the penalty, which is half in most cases. Furthermore, the granting of conditional release is dependent on a simultaneous positive criminological and social prognosis. In the case of conditional release, the time remaining to the completion of the sentence is a probation period (usually 2-5 years). Of all the measures discussed thus far, conditional release offers the perpetrator a relatively minor preferential treatment, as it releases him from serving merely the remaining part of the sentence (mostly small). On the other hand, it does not formulate any special requirements applicable to the offender – formally, after serving a specified portion of the penalty, all prisoners, including those convicted for the most serious crimes and recidivists, become eligible to apply for conditional release.

This may be further facilitated by the fact that the legislator provided for combining conditional release with special rehabilitation measures, facilitating the reintegration of the offender into society and allowing for the verification of his conduct at liberty. Likewise, as a rule, the court may choose to assign a probation officer, and may impose the same obligations as those applicable to conditional suspension of the execution of penalty. If the damage caused by the offence for which the offender has been sentenced has not been redressed, the court may obligate him to redress it.

Conditional release is adjudicated in enforcement proceedings to which the victim is not a party and does not even have the possibility to attend the proceedings or appeal against the court's decision. This is not conducive to giving the victim the importance he or she deserves. Establishment of Article 72 § 2 CC as the legal basis for adjudication of the obligation to redress damage in the case of conditional release means that only partial restitution is possible, and again, for reasons attributable solely to the sentenced person. Last but not least, conditional release may be revoked e.g. if the offender evades the obligations imposed on him, meaning that the only thing that is examined is the offender's attitude towards the offence committed. Consequently, it must be stated that the victim is consistently ignored in the case of conditional release – he or she has no status whatsoever and in essence his/her opinion does not matter, therefore the postulates put forward by proponents of restorative justice cannot be fulfilled.

In view of the above, it may be assumed that the Polish probation system is not fully conducive to the implementation of the principles of restorative justice. Obviously there are some elements that contribute to conflict resolution and they deserve recognition: the mitigation of penal repression, as offered by probation, may motivate the offender to make concessions in the settlement agreement, and the fact that this mitigation is conditional in nature will motivate him to abide by the terms of the settlement. The flexibility of restrictions that may be imposed during the period of probation, including the absence of a closed catalogue of probative obligations, allows for inclusion in the sentence of virtually any conditions of the settlement agreed by the parties. Moreover, placing the perpetrator on probation is a safeguard for the victim in that the court controls the provisions of the settlement and their future implementation. As regards the restitution, it is of fundamental importance for probation and, as such, should lie at the heart of the court's concerns. The obligation to redress damage ought to determine the shape of probation, since the perpetrator's attitude towards the damage that he caused and its repair has a significant prognostic meaning [24]. What constitutes an advantage of probation with regard to RJ may also be its disadvantage. Conditional mitigation of penal repression is always optional, thus the court may respect the settlement between the parties, yet it is not bound to do so. Linking the release from detention with a period of probation postpones the moment when the repression imposed on the perpetrator as a result of the committed offence receives its final shape. While two of the three measures are adjudicated in the fact-finding proceedings, the third one, namely probation assessment, is conducted in the enforcement proceedings. However, alteration of the stage of proceedings is of fundamental importance for this issue. Both fact-finding proceedings and enforcement proceedings are intended to fight crime and, while it is fair to say that there is a shared unity of the purpose of penalty adjudication and enforcement, measures applied to pursue this purpose differ depending on the phase of the criminal proceedings [25]. Fulfilment of the postulates of restorative justice in enforcement proceedings is difficult in that the objective of this stage of proceedings is to enforce penalties, punishments and other penal measures, as may be provided for in the sentence. At this stage of the proceedings, the focus is on the convicted person, while the victim recedes into the background. The underlying idea is to enforce penalty in such a manner that the offender does not reoffend, which is in the interest not only of the offender, but also of society as a whole. As a result of a departure from objectivisation of restorative justice and shifting the emphasis to the mechanism of individualisation [24], the crime committed (and, as a result, the victim) must be pushed into the background. Even if the victim is satisfied with the terms of the settlement that were transferred into the wording of the sentence, not paying regard to the victim in the process of controlling the execution of the settlement may in fact revive or even intensify the conflict caused by the offence.

Conclusions

The overall assessment of the provisions of the Polish substantive criminal law from the perspective of restorative justice makes it necessary to acknowledge that it is not a model which promotes the ideas of alternative conflict resolution. It appears that the Polish legislator has gradually introduced into the criminal law system a number of institutions focused on the injured party, or even made direct reference go one of the tools of RJ – mediation and settlement between the victim and offender, without duly taking into account the remodelling of the criminal law system towards restoration. Given that the objective is to resolve conflict, the main observation is that all these measures are rather illusory. In most cases, they fulfil only selected postulates of RJ – e.g. encourage the redressing of damage, without actually requiring any dialogue between the parties, or establish a mechanism for the assessment of the performance of the settlement based entirely on the situation of the offender. In our view, the Polish criminal law falls short of the standards established by RJ. In this context, it must be remembered that one of the recent amendments of the CC abrogated a provision (adopted quite recently) whose objective was to take into account in greater detail the conciliatory attitude of the parties, in particular of the offender. In essence, the repealed provision of Article 59a CC required the court of prosecution service to unconditionally discontinue proceedings in cases involving minor offences upon a motion from the injured party, subject to the condition that before the trial proceedings have been declared opened by a court of first instance, the offender, who was not previously penalised for an intentional offence committed with the use of violence, had reconciled with the victim, e.g. through mediation, and redressed the damage caused or compensated for the harm incurred. This provision was awaited by prosecutors, judges, and mediators alike. However, it was particularly important for the parties who were thus able to "reclaim" the conflict that had been stolen from them and could relatively freely manage the criminal proceedings. Nevertheless, it must be recognised that the changes that have recently been taking place in Poland are not conducive to conciliatory attitudes, and the reverse is in fact the case – strict and repressive criminal law is likely to be restored.

In the light of the above, the question is whether criminal law instruments can implement the idea of restorative justice. It appears that the "classical" criminal law is difficult to transform into the restorative model, as it then loses a number of its characteristic features applied for the purposes of performing its basic functions (retaliatory, rehabilitative, deterring). While conflict resolution is a priority, it may in fact be legitimate for restorative justice to function not so much as part of criminal law in the broad sense, but beside it. Such a system would therefore make it possible to retain the best features of each model, and depending on the situation – pursue specific goals.