Collapsing the labels ‘victim’ and ‘offender’ in the Victims’ Directive and the paradox of restorative justice

ABSTRACT

Laws do not exist in a vacuum. They are born and contextualised within the given society that they are meant to regulate. In November 2015, the Victims’ Directive came into force to strengthen the position of the victim in criminal proceedings. Within this regional law, restorative justice is regulated so that it is provided safely, consistently and according to standards. Here, the author identifies a paradox. One of the key reasons that restorative justice resurfaced was to empower all those involved in harm to face what happened and collectively find a way forward. Restorative practices have so far been dominated by Christie's understanding of the ‘ideal victim’ versus the big bad offender. This paper attempts to challenge this approach by arguing that as equal parties in conflict and harm, the labels of ‘victim’ and ‘offender’ must be reconsidered if the benefits of restorative justice are to be fully enjoyed. Abolitionism, however, is not the way forward. As the restorative justice movement leaves the era of innovation and enters the new reality of integration, the author proposes a new restorative justice paradigm of co-existence with existing criminal justice priorities.

KEYWORDS:

• Restorative justice
• European Union
• Victims’ Directive
• victims
• offenders

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 www.ec.europa.eu/justice/criminal/victims/index_en.htm (accessed October 2016).

2 www.ec.europa.eu/atwork/applying-eu-law/infringements-proceedings/infringement_decisions/index.cfm?lang_code=EN&r_dossier=&decision_date_from=26%2F01%2F2016&decision_date_to=28%2F01%2F2016&DG=JUST&title=&submit=Search.

3 www.gov.uk/government/publications/hmrc-eu-directives-eu-victims-directive-201229eu/hmrc-responsibilities-for-standards-on-the-rights-support-and-protections-of-victims-of-crime-eu-victims-directive-201229eu.

4 These projects were ‘Victims’ Voices in Restorative Justice’ (funded by the Ministry of Justice) www.iars.org.uk/content/VictimsVoicesRJ, ‘Restorative Justice in Europe: Safeguarding Victims and Empowering Professionals’ (funded by the EC JUST/2011-2012/JPEN/AG/2951) www.iars.org.uk/content/RJE, and ‘Restorative Justice in Cases of Domestic Violence’ (funded by the EC JUST/2013/JPEN/AG/4587), www.iars.org.uk/content/RJandDV. This paper also builds on a presentation (Gavrielides, 2016) that formed part of the Symposium ‘Recalibrating Victimhood: Restorative Justice, Victims’ Rights and Social Transformation in the EU and Canada’, University of Alberta, 22 February 2016. www.researchgate.net/publication/307967478_Addressing_the_Paradox_of_Restorative_Justice_The_Victims%27_Directive_the_collapse_of_labels_victim_offender.

5 Victims of crime under international law are not specifically mentioned in the Directive.

6 Thus, third-country nationals and stateless persons who have been victims of crime on EU territory should benefit from these rights.

7 See for instance www.iars.org.uk/content/restorative-justice-new-eu-directive-victims-concerns (accessed October 2017).

8 CJEU rulings in cases C-205/09 Eredics34 and Joined Cases C 483/09 and C 1/10 Gueye/ Sanchez35 interpreting Article 10 FD on mediation.