Dissertations / Theses on the topic 'Justice, restorative justice, criminal wrongdoing, criminal justice system'

Thesis (M.A.)--City University of Hong Kong, 2006.
Master of arts in arbitration and dispute resolution, City University of Hong Kong, School of Law. Title from title screen (viewed on Sept. 20, 2006) Includes bibliographical references.

Restorative justice has fast become a crime control strategy employed across jurisdictions. Its development within youth justice has coincided with the rise of neoliberal policies. However, the focus of neoliberalism on managerialism, efficiency, calculability and control are not congruent with restorative justice. Perhaps unsurprisingly then youth conferencing has the potential to become standardised in order to integrate into the audit culture of criminal justice. What the thesis examines the process and impact of diversionary youth conferencing, as a restorative justice process within the criminal justice system. Diversionary youth conferencing has been fully integrated into the youth justice system of Northern Ireland for over a decade and the findings of this thesis have provided a comprehensive account of how it is being influenced and moulded by the criminal justice system. The research adopted a qualitative, phenomenological methodology, involving non-participant observation and semi-structured interviews with (young people, youth conference coordinators and community representatives. Using triangulation of these four data sources to develop a comprehensive picture of youth conferencing. The theoretical framework of Ritzer's neoliberal McDonaldization thesis (1983) was used to shed light on the research findings. This analysis has shown that during the conferencing process young people can feel vulnerable, ill -equipped, intimidated, labelled as a trouble maker, coerced, abandoned, as though they have 010 one they can trust, forced into apologising and forced into agreeing a conference plan. These findings are disempowering and victimising. Diversionary youth conferencing is a process in which legal requirements, risk and targets have taken the place of harm and equal participation of stakeholders. It has become a McDonaldised process driven by the need for efficiency, calculability and control of risk, resulting in a set 0 f techniques used to administer youth justice.

Using an ethnomethodological approach, this research sought to describe how Restorative Justice is integrated into the daily world of the prosecution. This was achieved through the use of in-depth interviews with ten Crown attorneys from different sites in Eastern Canada alongside limited periods of participant observation. This research described how Crown attorneys inhabit a world in which it is necessary to perform an in-depth analysis of the defendant, their characteristics and how much blame can be accorded to them in order to then consider what sanction, if any, is required. Their world also demonstrated that protection of the victim and of society are paramount. Nevertheless, issues such as delay and the reputation of the criminal justice system were shown to be an important factor to also consider as a competent member of the prosecution. Through these methods, participants described a world in which Crowns embody a quasi-judicial role by evaluating and deciding on the proper course of action in regards to a criminal file. When applied to the use of Restorative Justice, these factors helped demonstrate that Crown attorneys thought of it as something which allowed victim and defendant to communicate with one another regarding the consequences of a crime. Restorative Justice was able to be justified through certain factors mentioned above; however, certain other aspects did not find support through them. Indeed Crowns appreciated such a process because they felt it would not endanger victims, that it might contribute to the safety of the public, and because it does not supersede the criminal justice system. Furthermore, for some, it might reduce delay. However, aspects such as attaining victim and or defendant satisfaction did not easily align with the aforementioned factors despite the positive manner in which these potential consequences of Restorative Justice were described by most participants. It was hypothesized then that Restorative Justice is used in a seemingly appropriate manner due to the ways in which it can respond to issues which are important to the prosecution. Other potential positive consequences are simply viewed as beneficial but not offering strong justification for the use of such programs on their own. Indeed, through Restorative Justice, Crowns stay in some measure of control over proceedings while it may also help bolster the legitimacy criminal justice system by responding to certain criticisms levelled against it. Thus, to a certain degree, Crowns are able to reconcile the two different approaches by highlighting the benefits it brings to the criminal justice system while not drawing attention to the ways it does not.

This thesis explores restorative justice practices as a modality of intervention in juvenile crime in Kenya. To analyse current restorative justice practices, the thesis adopts the Foucauldian concept of genealogy and examines the processes through which contemporary penal practices have become acceptable. The thesis links reforms in the juvenile justice system in Kenya to the process of legal globalization and highlights the role of the ‘law and development’ discourse in this process. Identifying pitfalls intrinsic to the Westernization of Kenyan law, the thesis engages in a postcolonial critique of law and development. Inspired by Foucault’s analysis of power/knowledge, which postcolonial theory heavily relies on, the thesis examines the conditions that make the Westernization of Kenyan law possible. In particular, the thesis analyzes the conditions that have made certain penal practices acceptable. Using data collected through original empirical research and existing literature on the Kenyan justice system, the thesis examines these penal practices. The research reveals that there have been attempts to incorporate restorative justice practices in the formal juvenile justice system. However, the system underutilizes these practices in favour of conventional court-based penal practices. On the other hand, restorative justice values are embraced in informal forums. Arguing that restorative justice values are compatible with the cultural ethos of communities in Kenya, this thesis examines why restorative justice practices in the formal juvenile justice system remain underutilized. The thesis identifies imprisonment as the predominant modality of punishment in Kenya and analyzes how restorative justice fits in within this context. Analyzing the current underutilization of restorative justice, the thesis highlights the failure to tailor legal structures to fit the contextual realities as a major drawback to the Westernization of Kenyan law. Inspired by postcolonial theory, the thesis underscores the need for local solutions to structural challenges besetting the legal system. It further emphasizes the need for a careful analysis of the compatibility of global penal trends with the contextual realities of a country still beset by the aftermath of colonialism.

Recently in Nigeria, calls have been made from stakeholders in the criminal justice system for change, with particular focus on reforms in the methods via which offenders are punished and rehabilitated. These calls have been made, mainly for two reasons. Firstly, the current sanctions in place, the most popular being the curtailment of the liberty of offenders via imprisonment, has failed to deter convicted and prospective offenders. This has contributed to high crime rates with recidivism recorded in high numbers. Secondly, the system fails to address the damages suffered by victims and the community at large. Therefore, there is a need to reform the current penal system so that it not only ensures that appropriate sanctions are issued, but also encourages participation by victims and the community in resolving issues arising from the crime. One possible avenue for reform that this thesis considers is a concept known as Restorative Justice (RJ). This is because of the perceived similarities between RJ and pre-colonial restorative practices in Nigeria. Before the arrival of the British colonialists in the 19th century, the main objective of the pre-colonial justice systems was to restore social safety with little or no recourse to the use of extreme punishments like imprisonment or the death penalty. This thesis examines the aforementioned pre-colonial justice systems as well as the circumstances that led to their substitution with the British colonial justice system, including the use of imprisonment as the primary method of punishment. It proceeds to analyse the RJ concept and establishes that it does share similar principles and history with its pre-colonial counterpart and can therefore act as a 21st century alternative. Based on these findings, this thesis argues for the integration of RJ into the Nigerian Criminal Justice system, including its penal system and concludes with recommendations for its implementation.

Introduite dans le Code de procédure pénale par la loi n° 2014-896 du 15 août 2014 relative à l'individualisation des peines et renforçant l'efficacité des sanctions pénales, à l'article 10-1, la justice restaurative rejoint désormais l'ensemble des réponses socio-pénales que le système de justice pénale français peut mobiliser pour répondre aux conséquences et aux répercussions du phénomène criminel. Depuis le 1er octobre 2014, date d'entrée en vigueur de l'article 10-1 du Code de procédure pénale, toute personne victime ou auteur d'une infraction pénale peut se voir proposer une mesure de justice restaurative, dans toute procédure pénale et à tous les stades de la procédure. Insérée dans le titre préliminaire du Code de procédure pénale, dans un sous-titre II "De la justice restaurative", la possibilité d'un tel recours à une mesure de justice restaurative prend place parmi les grands principes qui irriguent la procédure pénale et montre l'ambition du législateur en faveur de la justice restaurative présentée comme une des réponses à la crise que traverse le système de justice pénale actuel. Toutefois, au-delà de cette seule possibilité, se pose la question de la place que la justice restaurative peut occuper au sein de ce système, en particulier en ce qui concerne son institutionnalisation concrète et pratique. La démonstration de la forte complémentarité existant entre justice restaurative et justice pénale, au service d'un système de justice pénale répondant pleinement aux attentes des justiciables, ouvre la voie à une application conjointe de mesures de justice issues spécifiquement des deux modèles de justice. Il peut en résulter un système reposant sur une application conjointe de mesure de justice restaurative et de justice pénale et permettant un traitement différentiel, à la fois du conflit de nature infractionnelle et des attentes criminologiques et juridiques des personnes concernées. Cette approche, mise en perspective avec les initiatives naissantes de programmes en France, présente l'avantage de ne pas nécessiter d'importantes modifications du système de justice pénale. Elle consiste en la construction d'une offre locale de justice restaurative, complète et disponible, structurée par des organismes de coordination du partenariat sur lequel elle repose. Elle se manifeste actuellement, tant à l'échelon local, à travers la création de Services régionaux de justice restaurative (SRJR), qu'à l'échelon national, à travers les actions de l'Institut Français pour la Justice Restaurative (IFJR), aux côtés des principales fédérations et administrations concernées
The law n° 2014-896 of August 15th 2014 on “Individualization of penalties and for strengthening the effectiveness of criminal sanctions” introduced in the Criminal Procedure Code restorative justice. From now on, it belongs to the socio-criminal responses proposed by the French criminal justice system to respond to the consequences and impact of the criminal phenomenon. Since October 1th 2014, the date of entry into force of the law, a “restorative justice measure” may be proposed to any victim or offender during every criminal procedure and at all stages of the proceedings. Inserted in the preliminary title of the Code of Criminal Procedure, subtitle II, entitled "About restorative justice", the possibility of such recourse to a restorative justice measure takes place among the great principles that define the criminal procedure and shows the French legislator ambition for restorative justice, which is presented as a possible answer to the criminal justice system current crisis. However, it raises the question of the place of restorative justice in this system, especially with regard to its concrete and practical institutionalization. The demonstration of the strong complementarity between restorative justice and criminal justice to create a criminal justice system that fully meets the expectations of victims and offenders pleads in favour of a joint implementation of legal measures from these two models of justice. This can lead to a system, based on a joint application of restorative justice and criminal justice, and permitting differential treatment, both of the criminal conflict and of the criminological and legal needs of individuals. This approach, put into perspective with the emerging program initiatives in France, has the advantage of not requiring major changes to the criminal justice system. It involves the construction of a local offer of restorative justice, complete and fully available, structured by coordinating bodies from the parternership the offer is based on.. This approach is currently visible at the local level, through the creation of Restorative Justice Regional Services (SRJR), as at the national level, through the actions of the French Institute for Restorative Justice (IFJR), with the main federations and administrations

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In contemporary Brazil, changes in the population dynamics reveals the increase of the crime and indicates the necessity of rethink, lato sensu, the criminal models adopted by states in their various spheres, skills. In this sense, it has proved crucial to the formulation of a new model of criminal justice that takes into account the new parameters of a newly formed democratic society. In other words, it is essential to think in new criminal legal phenomena that have as their primary care the respect for human rights and, consequently, the dignity of the human person during the resolution pf conflicts related to criminal harvest. The objective of this research it is to reveal the compatibility that education on human rights and restorative justice present in the humanization of the criminal justice process. Therefore, this work will build in the researches, among other authors, of Bitencourt, about the decay of the prison system; Neves, Van Ness, Pallamolla with respect to restorative justice; and, finally, Reardon, Bobbio and Boiteux in human rights education as a practice model of education for peace. In methodological terms, the research realized it was of bibliographic nature, with a literature review of the issues involved for its. At the end of the survey it was found the hypothesis which suggests that to practice a humanizing criminal justice, arising from the principle of moral and material solidarity, it is necessary to reform the current criminal justice from encouraging human rights education and the effective consolidation of restorative justice within the Brazilian legal system. This research is relevant not only because of the lack of the subject from standpoint of international law as well because the fact of the thematic still be motive of large differences in harvest of contemporary International Relations.
No Brasil contemporâneo, mudanças na dinâmica populacional revelam o aumento da criminalidade e indica a necessidade de se repensar, lato sensu, os modelos criminais adotados pelos Estados em suas diversas esferas, competências. Nesse sentido, tem-se revelado crucial à formulação de um novo modelo de justiça criminal que leve em consideração os novos parâmetros de uma recente formada sociedade democrática. Ou seja, faz-se essencial pensarmos em novos fenômenos jurídicos criminais que tenham como cerne primordial o respeito aos direitos humanos e, consequentemente, a dignidade da pessoa humana durante a resolução de conflitos relacionados à seara penal. O objetivo dessa pesquisa é revelar a compatibilidade que a educação em direitos humanos e a justiça restaurativa apresentam no processo de humanização da justiça criminal. Para tanto, este trabalho apoiar-se-á nas pesquisas, dentre outros autores, de Bitencourt acerca da decadência do sistema prisional; Silva, Neves, Van Ness, Pallamolla no que diz respeito à justiça restaurativa; e, finalmente, Reardon, Bobbio e Boiteux na educação em direitos humanos como prática modelo de educação para a paz. Em termos metodológicos, a pesquisa realizada foi de cunho bibliográfico, com uma revisão da literatura sobre os assuntos por ela envolvidos. Ao final da pesquisa foi constatada a hipótese a qual sugere que para a prática de uma justiça criminal humanizadora, oriunda do princípio da solidariedade material e moral, faz-se necessário uma reforma da justiça criminal atual a partir do incentivo à educação em direitos humanos e da consolidação efetiva da justiça restaurativa no sistema jurídico brasileiro. Trata-se de pesquisa relevante não apenas em razão da carência do assunto do ponto de vista do Direito Internacional, como também pelo fato da temática ainda ser motivo de grandes divergências em seara das Relações Internacionais contemporânea.

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O presente trabalho tem por finalidade estudar a Justiça Restaurativa como uma alternativa a pena de prisão e sua utilização pelo Poder Judiciário. O trabalho foi realizado pelo modelo plan francês, desenvolvido em duas partes, uma parte teórica e uma prática; cada uma das partes foi dividida em dois capítulos. Na parte teórica, no primeiro capítulo foi estudada a justiça restaurativa, seus conceitos e peculiaridades, além de sua contextualização no universo jurídico. No segundo capítulo foram estudados os institutos da mediação e da conciliação, bem como à aproximação dos referidos institutos da justiça restaurativa. Na segunda parte, a prática; primeiramente abordamos o Projeto de Lei nº 7006/2006, que visa introduzir a Justiça Restaurativa em nosso sistema penal de forma institucionalizada e a Resolução nº 125 do Conselho Nacional de Justiça (CNJ). No segundo capítulo analisamos os programas de justiça restaurativa existentes no Brasil, a criação dos Núcleos de Mediação pelo Tribunal de Justiça do Estado do Rio de Janeiro; mapeamos a justiça restaurativa no Estado do Rio de Janeiro e não identificamos nenhum projeto em andamento. E por fim analisamos os indícios da Justiça Restaurativa existentes no Juizado Especial Criminal (JECRIM) da Barra da Tijuca, onde esse tipo de procedimento não existe de forma estruturada. Não existe um programa que dê aporte a prática, sendo utilizada, quando possível, como mais um instrumento para resolução dos conflitos, por meio da mediação penal.
The present work intends to study the restorative justice as an alternative to the imprisonment and its use by the Judiciary. The work has been done by the French model plan developed in two parts, one theoretical and one practical; each part was divided in two chapters. In the first chapter of the theoretical part, we studied the restorative justice, its concepts and peculiarities, besides its context in the legal universe. In the second chapter we studied the mediation and the conciliation as well as its approximation with the restorative justice. In the second part, the practical one, at first, we discussed the law project n° 7006/2006 that aims to introduce the restorative justice in our penal system in an institutionalized way and the resolution nº 125 of the National Council of Justice (CNJ).In the second chapter of the practical part we analyze the programs of restorative justice existent in Brazil, the creation of a Mediation Center by the Court of Justice of Rio de Janeiro; we map the restorative justice in the State of Rio de Janeiro and we could not identify any project in course. At last we analyze the traces of restorative justice that exist in the Special Criminal Court (JECRIM) in Barra da Tijuca- Rio de Janeiro, where this kind of procedure exists in a non structured way. There isn’t a program that contributes with the practice, being used, when possible, as an additional tool to the conflicts resolutions, by the penal mediation.

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Diante do atual modelo penal e processual penal n?o atender aos reclamos das partes interessadas, gerando um descr?dito na Justi?a de um modo geral, surge a Justi?a Restaurativa como uma alternativa para solucionar tais problemas e como elemento de concretiza??o do Estado Democr?tico Constitucional. A Constitui??o Federal de 1988 representa o s?mbolo maior do processo de democratiza??o e de constitucionaliza??o nacional. O Princ?pio da Dignidade da Pessoa contida no texto constitucional consiste num dos principais fundamentos da Rep?blica Federativa do Brasil, funcionando como respaldo aos direitos e garantias fundamentais do cidad?o, sobretudo na seara criminal. A partir do processo de constitucionaliza??o nacional, ocorre uma releitura das legisla??es infra-constitucionais, que passam a ser interpretadas de acordo com o texto constitucional. Atualmente, a conjuntura jur?dico-penal p?tria est? associada ? ideia de garantismo, ligada ao conceito de Estado Democr?tico Constitucional. Apresenta-se a Justi?a Restaurativa como um novo modelo de Justi?a Penal, mais flex?vel e humanizado, visando al?m da aplica??o da pena imposta pelo Estado, superar uma situa??o de conflito, na busca por resultados positivos no combate e redu??o da criminalidade, a satisfa??o da v?tima e a mudan?a da cultura de viol?ncia, compat?vel com as diretrizes do Estado Democr?tico Constitucional. A partir da an?lise do direito internacional e de projetos e legisla??es nacionais envolvendo a Justi?a Restaurativa, percebe-se a efic?cia das medidas restaurativas na solu??o de conflitos dentro do Processo Penal, al?m da satisfa??o da v?tima, do infrator e de familiares na participa??o dos encontros restaurativos, constituindo ferramenta de satisfa??o da dignidade humana, dentro de uma perspectiva humanista e garantista

Le 21 mars 2001, la loi relative aux droits des victimes d'infraction pénale 2001-5751 est adoptée. Fruit des mouvements féministes et des associations d'aide aux victimes, cette loi marque la reconnaissance par les institutions judiciaires et législatives de la nécessité d'adopter des droits en faveur des victimes d'infraction pénale en général et d'agression sexuelle en particulier. Elle institue, entre autres, le droit au respect, l'accès à l'information durant la procédure, la défense de la vie privée et le droit à la sécurité (face aux accusés ou à leur famille) des victimes d'infraction. Par ailleurs, cette loi énonce que les victimes d'agression sexuelle bénéficient de droits qui leurs sont propres, notamment celui de présenter leur avis à certains stades de la procédure pénale. Pourtant, cette loi ne possède pas de portée juridique obligatoire. La victime d'infraction pénale reste à l'écart de la justice pénale israélienne, sans véritable rôle autre que celui de témoin. Ce faible rôle de la victime semble reposer sur la particularité du système pénal israélien, qui respecte la tradition accusatoire. Selon ce modèle, le procès pénal oppose deux parties, l'accusation et la défense, qui doivent répondre d'un conflit devant une institution judiciaire impartiale, appelée à trouver la vérité à partir de la présentation de leurs arguments et de leurs preuves. Dans ce contexte, la victime n'est pas partie. Ce modèle s'oppose à la tradition inquisitoire, dans laquelle, la présence d'un juge actif participant à l'instruction et d'un juge de l'audience impartial et indépendant semble plus favorable à la participation de la victime. Pourtant, l'influence de ces modèles est moindre que par le passé, tout d'abord parce qu'il n'existe plus de système purement accusatoire ou inquisitoire, ensuite parce que les systèmes judiciaires respectant la tradition accusatoire dans leur pays ont adapté leur structure aux intérêts de la justice, mais aussi aux droits des victimes, notamment grâce à l'intégration des notions de procès équitable et de Due Process of Law. En Israël, cette évolution est plus mitigée. Ainsi, si le système judiciaire israélien reconnaît la victime comme sujet de la procédure, dans la pratique la rencontre avec les acteurs judiciaires est loin d'être facile, tout particulièrement lorsqu'il s'agit d'une victime d'agression sexuelle. En effet, ce type d'infraction repose souvent sur des préjugés et des stéréotypes contre les femmes. Le parcours de la victime d'agression sexuelle commence par le dépôt de plainte et la rencontre avec la police. Il se poursuit par la rencontre avec le procureur durant la phase d'enquête. N'étant pas représentée, c'est souvent seule ou assistée de simples bénévoles qu'elle se présente devant les acteurs de la justice. Lorsque la plainte n'est pas classée sans suite, le parcours de la victime continue par la rencontre avec le(s) juge(s) au cours du procès, durant lequel elle est interrogée par le procureur et contre-interrogée par l'avocat de l'accusé. Cette étape représente une nouvelle épreuve, et peut provoquer une victimisation secondaire, notamment lorsque l'avocat de l'accusé tente de la déstabiliser par ses questions. Ce parcours se termine par la sentence et par l'obtention, si la cour compétente le décide, d'une indemnisation au profit de la victime. L'enfant-victime bénéficie d'une procédure spécifique adaptée à ses besoins. Pourtant, qu'elle soit adulte ou enfant, la victime reste passive et subordonnée aux autres acteurs judiciaires pratiquement à toutes les étapes de la procédure. La victime d'agression sexuelle pourra-t-elle trouver une place active dans le cadre de la procédure pénale traditionnelle ? L'influence des autres systèmes juridiques qui ont su s'adapter pour intégrer le droit des victimes, et l'émergence de nouvelles pratiques telles que la justice restaurative pourraient permettre une évolution concernant le traitement de la victime d'agression sexuelle
On the 21st of March 2001, the "Rights of Victims of Crime Law", which acknowledges the existence of victims in the criminal procedure, was passed. This law, which is the fruit of the intervention of the feminist and the human rights movement, finally recognizes the necessity of granting rights to victim of crime in general, and the victim of sexual offences in particular. The "Rights of Victims of Crime Law" included a series of rights for victims during the different stages of the criminal proceedings such as free access to information, the protection of their privacy and the right to be protected inside and outside of the court from intimidation by offenders and their families. Likewise, victims of sexual offences may receive information, and express their opinions, under specific conditions at different stages during the trial and in cases where a plea bargain is struck between the offender and the prosecutor. Despite this new law, the victim's participation in the process remains symbolic. The victim remains on the sidelines of the Israeli criminal justice system, with no active role at any stage of the criminal process. The only real players are the public prosecutor, the accused and his or her lawyers. It seems at first glance that the fact that the victim does not participate in the criminal process is based on the characteristics of the Israeli criminal system as an adversarial system. As an adversarial system of law, the Israeli criminal system consists of two parties only, which are equal: the prosecution and the accused seeking to resolve a dispute before a passive judge, interested in discovering the procedural truth. In this system, there are two parties, the defense and the prosecution, the victims only representation being as a witness. However, we have seen that during the last thirty years, in countries utilizing a similar legal system, a clear evolution in victims' rights based on the Due Process of Law and a fair trial for the accused and for the victims of sexual abuse. In some of these countries, victims have profited from an effective role during the proceedings. The journey of the victims of sexual offences in the criminal court, from the filling of a complaint with the police, to the meeting with the prosecutor and judges, until the sentence, is not easy, considering that he or she is not represented by a lawyer. Moreover, the domain of sexual offences is laden with stereotypes that the victims have to deal with. If "The Rights of Victims of Crime Law", try to ease the process for victims, the victims' participation is weak and depends on the will of the prosecutor. Moreover, the opinion of the victim does not have any bounding value. In fact, this law does not provide standing or remedies for victims rights violation. The traditional Israeli criminal system does not satisfy the need for victims of sexual assault to express human feelings during the stages of the criminal process, and may lead in certain case to secondary victimisation. Therefore, it is interesting to consider if the Israeli criminal prooceedings could be influenced by other systems of law which have succeeded in granting effective rights to victims, and whether the social and juridical evolution of Israeli society might offer progressively a forum to victims, notably with the utilization of restorative justice

This thesis poses a normative question. It asks how a response to criminal wrongdoing should be reframed so as to achieve justice. The question is asked in the context of debates on the role of restorative justice and within a conceptual framework that sees justice as primarily concerned with distribution. Conventional responses to wrongdoing accept that offenders must be given their deserts and treated equally, and that all persons affected by the wrongdoing must have their rights promoted and protected. What is distributed to meet these aims is mostly in the form of burdens, primarily coercively imposed punishment. This thesis offers new insights into how well such conventional responses meet the needs of justice. It says that not all of what is required to mark such distributions as just is currently acknowledged. What is missing is a focus on removing the burdens imposed as a consequence of wrongdoing. There is an explicit failure to accept that benefits as well as burdens need to be distributed, primarily benefits of repair necessary to restore damaged individuals and relationships. What is also lacking is a more effective means to trigger crime prevention. This thesis argues that it is only by asking ‘the restorative question’ in all responses to wrongdoing that institutional responses can be rendered more effective in meeting these deficiencies. This thesis considers the benefits that the restorative practice of justice brings to this issue. Empirical evidence gathered from sites of practice shows that restorative responses provide many missing elements. They address the need to re-establish iv harmonious social relationships and to consider the imposition of necessary burdens through means other than punishment. Restorative practice nonetheless has its own inadequacies as a form of justice practice in response to wrongdoing. These limitations are highlighted when the seriousness of the wrongdoing calls for a strongly retributive response. Consequently rather than representing a replacement discourse, restorative practice acts best in a complementary role to conventional legal justice. Using methodology which integrates a normative/doctrinal/philosophical approach with ethnographic methods and legal and historical studies, this thesis offers a fundamental reworking of the justice response to wrongdoing. By means of this analysis, the thesis develops a set of institutional design ideas about how best to restructure the response to criminal wrongdoing. ...

碩士
國立中興大學
法律學系科技法律碩士班
100
When a crime is committed, not only the victims and the offenders are affected, their relatives or the members of the community which they are in may be affected too. However, as the current criminal procedures are based on the protection of the human rights of the defendant, every procedure is executed in consideration mainly of the defendant. According to the applicable laws, the victims are not considered a party in the criminal procedure, not to mention that the other persons who may be affected by the crime are not given any opportunity to express their opinions or feeling in the procedure. In order to offer the victims and offenders of the crime, and even the members of their communities, an opportunity to express their opinions fully, the stakeholders subject to the crime will all be gathered to increase their understanding, through dialogues between them, of the context of the crime and the influences upon them to seek a best way of recovering from the damages of the criminal case for the victims, also to assist the offenders in being true to admit their fault and to remorse so as to prevent possible re-commitments. In such ideal and in the international trend, the Ministry of Justice proposed a pilot program for restorative justice to be executed at Taiwan’s eight prosecutor’s offices. This study, apart from explicating the concept of restorative justice, also analyzes the current criminal procedures that embrace such concept. Explorations are made on the topics of deferred prosecution , non-prosecutorial disposition , criminal summary procedure, plea bargaining, the system of fine in lieu of imprisonment, community service, and criminal conciliation . Analysis is also made on the pilot program for restorative justice in Taiwan, Finally, recommendations are made, based on the research findings, to offer reference in the construction of Taiwan model of restorative justice.

The subject of this thesis is criminal justice policy. It focusses on diversion, that is, alternatives to the court system. I argue that the current criminal justice system, which is rooted in retributive principles, has shortfalls which are of such a degree that it makes sense to consider alternatives. A new movement in criminal justice policy, restorative justice, reflects a theory that may provide a framework for new programs. Restorative justice is based on principles that are fundamentally different from retributive ideology and the translation of these ideas results in dramatically different programs. In my thesis I delineate the differences between restorative and retributive principles. The retributive system leads to dissatisfaction among the stakeholders in the criminal process. The purpose of the thesis is to investigate whether implementation of restorative justice principles could lead to more satisfaction and a higher quality of justice. The restorative justice theory has a strong rhetoric, as will be made clear. The implementation of restorative programs, however, does not develop quickly. There are several reasons for the slowness, including the reluctance of criminal justice officials to give new initiatives a chance to develop and to co-operate in their development. I describe three restorative programs that divert criminal cases from the court system, they are: mediation, dading, and family group conferences. On the basis of these programs I make clear which are the strengths and the possible weaknesses of restorative justice. The comparison of different programs from different countries, provides a useful insight in the dynamics of restorative justice in practice. International research and comparison will lead to understanding in how to design a suitable and valuable process. My conclusion is that a truly restorative system is neither a realistic, nor a wished situation. For a variety of cases, though, restorative programs provide a better locus for resolving the problems involved in crime, than the court process does. I therefore advise that the development of restorative programs must go on.

碩士
國立臺北大學
犯罪學研究所
94
This research aims to apply the concept of restorative justice to discuss and examine whether in the past mediation for those who participate under influence claim any practical benefit of restorative justice spirit in Taiwan. It also attempts to develop a model useful for enhancing the operation of mediation system. In this study, I performed in-depth interview in order to gather information on the attitude and concept of front line mediation committee leaders and secretaries. Besides, I uses the in-depth interview for party who participate in criminal case mediation in order to find out their opinion and attitude. In addition, a survey was conducted to parties who participate in criminal case mediation with a self-developed questionnaire. Questionnaires were distributed to twelve district mediation committees . In the end, 498 valid and effective questionnaires in total were collected and analyzed. The data is then analyzed through operating independent-samples t test, One-way ANOVA, Pearson’s product-moment correlation, and the analysis of stepwise linear regression. The result comes out as follows: 1.The restorative effects of criminal case mediation system are: positive responses in the degrees of satisfaction on the mediation and on result, the degree of restoration, and identification with mediation system 2.There are highly-revealing correlations between the degree of satisfaction on mediation and one demographic variable , gender. However, there is no significant correlation found between other demographic variables and the degree of satisfaction. Above all, all types of practice benefits turn out to be positive among different personal characteristics. 3.Significant correlations are only found between the variable of whether parties meet each other before mediation service or not in characteristics of mediation events and the degree of satisfaction on mediation. Moreover, there is no significant difference between the characteristics of mediation events and the restorative effect of mediation. 4.Whatever subjective procedural variations, the parties have high restorative effect of mediation. 5. Whatever objective procedural variations, the parties have high restorative effect of mediation. 6.The restorative effect becomes more obvious in conditions when the offenders and victims were provided with the opportunities for sufficient dialogue and negotiation. Under this circumstance, the offenders hold relatively positive feelings toward the victims. 7.Significant correlations are only found between the variable of whether parties shake hands or not and practice effect of mediation. Moreover, there are high significant correlations between whether compensate or accept for the other party or not and degrees of satisfaction on the mediation and on result, but there are no significant correlations between whether compensate or accept for the other party or not and the degree of restoration, and identification with mediation system. 8.Correlation analysis and stepwise linear regression show that most of the restorative effect for those who participate in mediation under influence revolves around subjective, objective procedural and interaction between offenders and victims conditions. This analysis of survey questionnaires conclude that the restorative effect of mediation is highly related to operational procedure. The attitudes and concept of the mediator shown during the mediation play a important role during the process, and interaction between offenders and victims .Consequently, it is suggested that there is a need to adjust the traditional impressions of judicial personnel as dignified and create a warmer and consideration judicial environment for mediation. In addition, the offenders and victims were provided with the opportunities for sufficient dialogue and negotiation would accelerate restoration. Mediation operated with the spirit of restorative justice is believed to be beneficial in creating a more peaceful and included society.

Some legal practitioners may disagree with the idea of a restorative criminal justice system as a better solution than retributive one. Can a criminal justice system provide justice for all while concurrently reducing the use of imprisonment? Is it possible to keep the community safe, punish and correct offenders, and reduce crime rate while reducing the use of imprisonment as deterrence? The criminal justice system is in place to do justice to victims, the state and the offender. Justice is not just for the state and the victim with exclusion of the offender. If it were so there would be no need for re-integration. Canada has a growing restorative justice system; this system brings to light the possibility of implementation of restorative element in an existing retributive system to produce a workable hybrid. This thesis seeks to explore these possibilities. Although this does not imply that the Canadian criminal justice system is perfect, quite the contrary it is a work in progress. However, this is an attribute that Nigeria and many other common law countries can learn from and emulate. This paper explains how.
February 2017

This report is the culmination of literature study and semi-structured interviews which assisted in developing a Model for Implementation of Restorative Justice in the South African Correctional System. The study explores the use of Restorative Justice as part of rehabilitation in a prison setting. Literature focuses mainly on Restorative Justice as part of diversion, in cases of first offenders and less serious offences. Restorative Justice with sentenced offenders has been gaining momentum, though. Diversity in terms of language, cultural and religious practice as well as social background, should be considered as it affects the decision to enter into a Restorative Justice process. Restorative Justice with sentenced offenders is challenging and in the main a largely unsupported field. The study draws on experience from other countries, while at the same time advocate for uniquely South African practice. The involvement of the most important role players, namely victim, offender and the community is emphasized. Attitude and insufficient training seem to be some of the challenges for the implementation of Restorative Justice. Successes are reported in the few sites where Restorative Justice is implemented in the Correctional System, but a change of mindset, of being open to possibilities other than lock-up and punish in the entire Criminal Justice System is needed. Restorative Justice in the Correctional System seems to have been approached as yet another new programme, and not as a paradigm shift for the entire Criminal Justice System. Dealing with conflict in a restorative way should be at the front end of the chain, with young children whose behaviour can be directed, as changing behaviour of adults proves to be difficult. Repentance and forgiveness in different cultures and spiritual backgrounds are some of the issues that are grappled with, although forgiveness is nowhere indicated as a requirement for a successful Restorative Justice process. Voluntary participation is required from victims and offenders with support from communities. It remains a deeply spiritual and individual journey for those who choose to turn away from anger, fear and hatred, and start the process of personal healing and restoration. Restorative Justice with sentenced offenders can assist in dealing with the aftermath of crime.
Penology
D. Litt. et Phil. (Penology)

This dissertation is the culmination of extensive literature study on the application of Restorative Justice in the South African Correctional System. International and national resources on the application of Restorative Justice both in Corrections and as pre-sentence option had been studied. The background of the penal system and the development of Restorative Justice as part of the Criminal Justice System are investigated by looking at ancient practices, indigenous and modern practices. The study intends to draw on experience from other countries, while at the same time advocate for the development of a uniquely South African model or practice. The role of the most important stakeholders, namely victim, offender and community is emphasized with reference to the challenges that offenders face in terms of reintegration and the lack of resources in communities to enable them to honour Restorative Justice agreements.
Criminology
M. A. (Criminology)

The purpose of this report is to focus on the school-to-prison pipeline and the need to intervene with school discipline that pushes students out of the classroom and into the criminal justice system. It showcases services and programs in Austin, Texas, including Southwest Keys, Webb Youth Court, and Council on At-Risk Youth as examples for solutions. The report also incorporates research and expert advice on the safety and wellbeing of students while advocating a need to change the policies and culture surrounding schools.
text

This research seeks to establish a methodology by which transitional justice strategies ought to be incorporated within the International Criminal Court (ICC) framework. The study is based on the situation in Uganda as an example of the state that has a situation and cases before the ICC. The aim of the thesis was achieved through the adoption of a combination of theoretical legal research and the non -doctrinal approaches. This research establishes that the primary responsibility to prosecute persons suspected of violating international law lies with the states. The importance of the concept of individual criminal responsibility, the idea that every person suspected of committing the most serious offences must be held accountable regardless of status. The principle of individual criminal responsibility is further developed with the creation of the ICC. This research clarifies that there are limitations in terms of what prosecutions can achieve during transitional periods; further, that trials in the ICC and national courts can be undertaken together with proceedings of the Truth and Reconciliation Commissions or indigenous mechasims. Such an approach will allow for confines of prosecutions to be addressed. Despite the existence of principles and institutional framework that are intended to ensure individuals are held accountable for the most serious offences of international concern, the majority of individuals are not held accountable. In order for the ICC to operate effectively it would need to seek to go beyond deterrence and retribution. This would require post – conflict states to devise transitional arrangements that compel with the ICC structure. Thus the research recommends that it would be better for judicial and non- judicial measures to be adopted in states that have cases before the ICC. Particularly Uganda must adopt the mato oput method formally as a tool to address the past human rights abuses in Uganda. All persons regardless of whether they have been granted amnesty or not must be held accountable under the mato oput measures. This implies all persons with exception to those that the ICC has issued the warrants of arrest against.
Public, Constitutional and International Law
LL. D.

The South African Constitution, with its Bill of Rights, represents a decisive break with the past and a great advance by South Africans in reclaiming their human dignity and fundamental freedoms. Before 1993 punishment of crime was defined by the social order which had been designed under the apartheid government; prisoners were generally subjected to cruel and degrading treatment while criminal suspects could be detained indefinitely and without trial. The penal system was to some extent directed at controlling and regulating the conduct of Blacks. The constitutional dispensation has resulted in a re-look at our penal policy and has placed great emphasis on the rights of prisoners. These rights flow from the rights to equality, dignity and liberty. The Constitution has entrenched certain rights of criminal suspects, including the right to a fair trial. Legislation has been introduced to ensure compliance with the constitutional imperatives. The new dispensation has given rise to debate on many issues, and facilitated a rise of a victims’ movement seeking to promote victim interests. This movement has noted that offenders and alleged offenders enjoy a series of constitutional rights, and that corresponding rights for crime victims need to be introduced. Victims are unlikely to be accorded rights in the literal sense of the word; nevertheless, they need to be accommodated within the criminal justice system. This need has given birth to a charter for crime victims, a document that seeks to empower crime victims. The perception remains, however, that offenders and crime suspects still enjoy too much protection, to the detriment of victim interests. The development of victim rights is hampered by the adversarial nature of the country’s criminal justice system and the perception that victims have no role to play within the criminal process, other than as witnesses. The purpose of the thesis is to analyse the extent to which our Bill of Rights strikes a balance between the interests of alleged offenders and offenders on the one hand, and crime victims on the other. It also seeks to create awareness about the plight of crime victims and to make suggestions on possible solutions.
Criminal & Procedural Law
LLD (Criminal & Procedural Law)

The aim of this diploma thesis is to describe and explain the main features of implementation practice of house arresting in the Czech Republic and consequently propose possible ways out in relation to subsequent (and successful) continuing of implementation procedure. In terms of theory there are reflected approaches of criminal law, criminology, penology, sociology and public policy. Within the research work, the space had been given to those participants immediately concerned and affected with house arresting agenda - judges, prosecutors, probators, ministry officers (Ministry of Justice), attorneys, watchdog organizations and experts on criminal law from academic sphere. House arresting had entered valid legal regulations in connection with new criminal law effectual since 1.1.2010. This new regulation substituted the pristine penal code. In new criminal law is significant shift of accent from tangible to formal conception of culpability. By the analysis of key participants of objective policy, identification of possible goals, adumbration of solution options is finally formulated optimal version. In terms of this version are reflected possibilities of evaluation and monitoring. Special attention is payed to identification of crucial risks and problems related to implementation practice, which...