Tools in Network: an E-Net Approach to Sharing Mediation Competences.

From the UNO

- United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules") - Adopted by General Assembly resolution n° 40/33 of 29 November 1985. According to art. 11, "consideration shall be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority" and possibly providing "diversionary measures".

- Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power - Adopted by General Assembly resolution n° 40/34 of 29 November 1985: this document emphasizes the necessity to adopt protection instruments for victims at national, regional and international level with the purpose of facilitating a fair trial as well as forms of prevention of victimization, through assistance, restitution and compensation measures.

- International Convention on the Rights of the Child - Adopted by General Assembly resolution n° 44/25 of 20 November 1989 in New York. This is a fundamental document for the international protection of children and endorses several provisions of the so called Beijing Rules. Article 40, par. 3 addresses restorative justice measures: "States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: ... b) (to establish), whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected".

- Vienna Declaration on Crime and Justice - Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders Vienna, 10-17 April 2000. Another fundamental document which reasserts the necessity to introduce in international criminal justice systems "where appropriate, national, regional and international action plans in support of victims of crime, such as mechanisms for mediation and restorative justice". It also announces 2002 as target date for member States to develop victim support services through the establishment of funds for victims and the promotion of awareness campaigns on the rights of victims. Article 28 encourages the development of restorative justice procedures and programmes.

- Resolution on Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century - adopted by the General Assembly of the United Nations n° 55/59 of 4 December 2000. This document endorses the Vienna Declaration. Aware of the need to realize effective crime prevention strategies, the States undertake to reintroduce international, regional and national agreements. Among the instruments considered adequate to this end, restorative justice methods are again mentioned for their ability to reduce crime through reconciliation between victims and offenders. This document establishes 2002 as target date to develop relevant action plans for the protection of victims and in support of mediation activities.

- Resolution concerning plans of action for the implementation of the Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century - adopted by the General Assembly of the United Nations - n° 56/261 of 31 December 2002. This document receives the action plans designed by the Commission on Crime Prevention and Criminal Justice, upon due consultation with Member States, and namely articles 27 and 28 of the Vienna Declaration recommending national and international measures. Specifically, Chapter IX calls for "Actions on witnesses and victims of crime", Chapter XV for "Actions on restorative justice" and later in the text it mentions the necessity to develop adequate policies for the promotion of a culture favourable to mediation and restorative justice.

A large number of documents have been adopted by the Economic and Social Council of the UNO:

- The Resolution called Elements of responsible crime prevention: standards and norms, Economic and Social Council of the United Nations n° 1997/33 of 21 July 1997. Considering prison overpopulation and the difficult conditions of the criminal justice system, it reinforces the need for non-repressive and more victim oriented crime prevention.

- The Resolution on international cooperation aimed at the reduction of prison overcrowding and the promotion of alternative sentencing, Economic and Social Council of the United Nations n° 1998/23 of 28 July 1998. Recalling the above provision, the Economic and Social Council, aware of the urgency to face prison overpopulation and the difficulties for overworked staff, urges once again the Member States to adopt appropriate alternatives to detention. To this end, it invites to adopt alternative methods of conflict resolution, especially for petty offences, through the use of mediation, civil reparation or victim compensation.

- The Resolution on development and implementation of mediation and restorative justice measures in criminal justice, Economic and Social Council of United Nations n° 1999/26 of 28 July 1999. Unlike previous documents, which are here recalled in their contents, this provision is centred on restorative justice and mediation. The necessity to use mediation programmes and other forms of restorative justice for the resolution of minor conflicts is once again recommended. Such instruments are adequate to ensure sufficient satisfaction for the victim and, in the long run, for the community, as they are able to prevent future unlawful behaviours. They represent a valid alternative to short term sentencing or fines. Finally, the Member States are invited to consider the opportunity and advantages, within their own legal systems, to develop alternative procedures to formal penal court proceedings. Furthermore, the document suggests the exchange of information and experience on mediation and restorative justice, considering the possibility to formulate common standards and rules.

- The Resolution on basic principles on the use of restorative justice in criminal matters, Economic and Social Council of United Nations n° 2000/14 of 27 July 2000. This text recalls previous resolutions and the Vienna Declaration of the same year and annexes a preliminary draft of a declaration of "basic principles on the use of restorative justice programmes in criminal matters". This document is addressed to all States and governmental and non governmental agencies working on crime prevention activities also through restorative justice methods, as a basis to define common principles.

- The Resolution on the implementation of restorative justice programmes in criminal matters - Economic and Social Council of the United Nations n° 15/2000. Upon the work of the Expert Group on restorative justice, all Member States are invited to develop programmes and assist one another to facilitate research, analyses and exchange of experience in this field. The guidelines identified by the Expert Group cannot be considered as mandatory as they have to be adapted in the context of the penal systems of each State. They include a list of definitions - well thought but perfectible - of: restorative justice programmes, restorative outcome, the parties and the facilitator. Some basic principles are identified, like: the possibility to use conciliatory and restorative methods at any stage of the criminal justice system; the free and voluntary consent; fundamental procedural safeguards concerning legal assistance, translation, interpretation, parents' attendance and information access; finally, the need to ensure an adequate training to mediators and a constant information exchange between them and judicial authorities (Gualtiero Michelini, Giustizia riparatoria e mediazione penale nel recente dibattito delle Nazioni Unite, in Documenti Giustizia 2000 n. 5, pp. 956 et seq.).

In short, the UNO produced a large number of documents dealing directly or indirectly with restorative justice and mediation. A close analysis of these documents shows the main key-points of the relevant debate. First of all, the awareness that the victim is not adequately involved in criminal proceedings. As to the young offender, the need to ensure priority to the educational process and, if possible, to avoid resorting to criminal proceedings and protect the juvenile from their stigmatizing consequences. Within this framework the instrument of restorative justice appears the ideal setting to restore the victim-offender relationship. It is also the best way to fight recidivism, to ease the congestion of the criminal justice system - concentrating resources on the most serious crimes - to reduce prison overpopulation, to promote the offender's resocialization and the victim's satisfaction after the offence suffered