Guest lecture by John Braithwaite, 2024 Balzan Prizewinner for Restorative Justice
First edition of the International Seminar on Restorative Justice and the Environment, August 2020, published by AJUFE
English translation
The Law No 68 of 22 May 2015 introduced a diversionary procedure enabling the out-of-court settlement of certain minor criminal violations of the Environmental Code (Legislative Decree No 152 of 3 April 2006). This article analyses in depth the various stages of this innovative procedure, placing particular emphasis on its possible legal qualification. The policy functions of the new procedure and its scope of application are also critically assessed. Conclusively, the article concentrates on the new procedure's compliance with the principles of restorative justice. It is sumbitted that this new diversion scheme can be regarded as a form of de facto decriminalisation, based on a bargaining process which sits ad odds with aims of restorative justice.
This paper starts taking note of the contradiction in which imprisonment nowadays is. On the one side, it can claim foundations in science and rationality, which made it an apparently indispensable tool; on the other side, nowadays there is clear evidence of a deep crisis in many respects, humanitarian, ideological and of efficiency. Therefore, in this moment, we are facing a turning point in the Italian policy on crime. The guidelines under which the punitive system may evolve in the future match distinct, but not necessarily alternative, cultural preconditions. There are three conceivable guidelines for the reform: firstly, that of the alternative measures in prison; secondly, that of the measures alternative to imprisonment; finally, the restorative justice. Each of these will be examined in respect of the imprisonment "monoculture".
The figure of the regularization after the Social Security fraud crime, has been much discussed in the Spanish criminal doctrine. The fact that a person who has defrauded can evade the criminal sanction by recognizing and paying what he did not do in the past has generated intense controversy. This paper analyzes two questions about this generous post-crime behavior, in terms of annulment of punishment: its legal nature and its rationale and reason for being. Both aspects contribute to better understand the meaning and reason of this controversial figure in light of its current regulation in the Spanish Penal Code.
The history of the criminal sanction system is complex: there has been a constant intertwining between penal norms, criminological features, procedural developments, theological influences, criminal policies, architectural theories. By referring to three artworks and their ideal symbolism, this essay intends to analyse the path that has led to the overcoming the most cruel and inhuman punishments, progressively affirming the pivotal role of prison, establishing intermediate sanctions, increasing awareness for human rights within the punishment mind-set. Thanks to a dialogue between history, law and art, it aims to reflect both on the present state of the criminal sanction system and on its needs for renovation, starting from the consolidated and yet fragile theoretical foundations.
Eusebi’s considerations on the question of punishment - in the context of Christian thought - highlight the dark side of criminal law: in the light of art. 27 of the Constitution, he proposes a view of punishment as a path, rather than a rigidly counterbalanced retaliation, and points to restorative justice as a model aimed at the rebuilding of social relationships. The link to Christianity opens prospects which go beyond state justice, and raises the issue of the importance of comprehensive understandings for the rule of law to hold.