Riassunto analitico
Starting from the 1970’s a new concept of justice - commonly termed “restorative justice” - developed in North America first, and then gradually spread to Europe and Oceania (New Zealand and Australia) too. The United Nations (UN), alongside the institutional bodies of the European Union (EU), followed this development simultaneously. In particular, they supported the establishment of restorative justice by issuing official documents, some of them of a normative nature.
In Italy, the sole restorative justice acts were represented by the Presidential Decree No. 448 of 1988 and the Legislative Decree No. 274 of 2000. The former enacted the regulations regarding juveniles’ criminal trials, whereas the latter concerned the jurisdiction of the justice of the peace and the related proceeding. Showing a delay of a decade at least, Italy is still lacking a clear and accurate legislation regarding mediation in the criminal field. About that, it seems that the principle of mandatory prosecution may constitute one of the main obstacles to the effective development of mediation and restorative justice in Italy. This, in particular concerning the development of mediation and restorative justice in the phase that precede the decision to prosecute.
This thesis will proceed as follows: a definition of restorative justice, as well as a description of its birth and development will be illustrated; an analysis of both past and current interventions by the UN and EU in the field of restorative justice will be provided; then, a description of the role of mediation in Italy, its application and development will be depicted. Ultimately, the purpose of this study will be to examine whether, how and for which reasons the principle of mandatory prosecution - which is ratified by article 112 of the Italian Constitution - may hinder the development of restorative justice and mediation in Italy. Therefore, the research will focus on restorative justice during the phase preceding the decision to prosecute and, in turn, during the trial stage. Restorative justice will not only be analyzed in relation to the principle of mandatory prosecution, but it will also be correlated to the institutions linked to the decision to prosecute, such as the plaint and its withdrawal, the voluntary paid of a fine, and the concepts of procedural economy and criminal law as extrema ratio. All these aspects will be analyzed with reference to the ordinary procedure and, additionally, to the juvenile procedure and to the trial in front of the justice of the peace, which constitute essential terms for comparison in order to discuss the development of restorative justice in Italy. Finally, a comparison with Belgium will be provided. In fact, the Belgian legal system is characterized by the different principle of discretionary prosecution and is an example for the use of restorative justice techniques and its efforts towards their implementation.
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Abstract
Starting from the 1970’s a new concept of justice - commonly termed “restorative justice” - developed in North America first, and then gradually spread to Europe and Oceania (New Zealand and Australia) too. The United Nations (UN), alongside the institutional bodies of the European Union (EU), followed this development simultaneously. In particular, they supported the establishment of restorative justice by issuing official documents, some of them of a normative nature.
In Italy, the sole restorative justice acts were represented by the Presidential Decree No. 448 of 1988 and the Legislative Decree No. 274 of 2000. The former enacted the regulations regarding juveniles’ criminal trials, whereas the latter concerned the jurisdiction of the justice of the peace and the related proceeding.
Showing a delay of a decade at least, Italy is still lacking a clear and accurate legislation regarding mediation in the criminal field. About that, it seems that the principle of mandatory prosecution may constitute one of the main obstacles to the effective development of mediation and restorative justice in Italy. This, in particular concerning the development of mediation and restorative justice in the phase that precede the decision to prosecute.
This thesis will proceed as follows: a definition of restorative justice, as well as a description of its birth and development will be illustrated; an analysis of both past and current interventions by the UN and EU in the field of restorative justice will be provided; then, a description of the role of mediation in Italy, its application and development will be depicted.
Ultimately, the purpose of this study will be to examine whether, how and for which reasons the principle of mandatory prosecution - which is ratified by article 112 of the Italian Constitution - may hinder the development of restorative justice and mediation in Italy.
Therefore, the research will focus on restorative justice during the phase preceding the decision to prosecute and, in turn, during the trial stage.
Restorative justice will not only be analyzed in relation to the principle of mandatory prosecution, but it will also be correlated to the institutions linked to the decision to prosecute, such as the plaint and its withdrawal, the voluntary paid of a fine, and the concepts of procedural economy and criminal law as extrema ratio. All these aspects will be analyzed with reference to the ordinary procedure and, additionally, to the juvenile procedure and to the trial in front of the justice of the peace, which constitute essential terms for comparison in order to discuss the development of restorative justice in Italy.
Finally, a comparison with Belgium will be provided. In fact, the Belgian legal system is characterized by the different principle of discretionary prosecution and is an example for the use of restorative justice techniques and its efforts towards their implementation.
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