Il nuovo paradigma della giustizia riparativa in ambito penale

Restorative justice, thematized in the Seventies of the last century in Anglo-Saxon countries (particularly in North America), is a paradigm of criminal justice, alternative to traditional criminal justice, which proposes different forms of conflict resolution in order to realize "an agreement”, which constitutes the starting point for overcoming the crime and which allows effective restoration of the victim, as well as recovery of the offender. In fact, the restorative proposal focuses on the attempt to remedy the injury caused by the crime, while at the same time encouraging the active participation of the subjects involved. There is now almost consensus that it was Howard Zehr who first used the term "restorative justice". The methods and main programs that can be traced back to the aforementioned paradigm are multiple and constantly evolving: the main models of restorative practices that come into consideration in this paper are the Family Group Conferencing (FGC), the Sentencing Circles and, naturally, the Victim-Offender Mediation (VOM), i.e. criminal mediation, considered the archetype of the restorative programme. Then this research focuses on the analysis of European and international sources in the matter of restorative justice, with particular reference to the Recommendation of the Council of Europe n. 19 of 1999, to the “Basic principles on the use of restorative justice programs in criminal matters” (so-called Basic Principles of 2000), developed by the United Nations in 2002, as well as to Directive 2012/29/EU. Into a comparative overview, the author examines the German and Austrian legal systems in the field of restorative justice. Given that the German and Austrian legislation, with the first experiments with restorative justice in the 1980s, were nothing short of pioneering, therefore this doctoral research analyzes the provisions of restorative justice adopted in these countries. Finally, the paper focuses on the Italian legal system: after having examined the first institutions oriented towards the restorative paradigm, then the author deals with the "organic discipline" of restorative justice recently introduced by the Cartabia reform. Moreover, as regards the relationship between the Italian penal system and restorative justice after the Cartabia reform, the choice of the Italian legislator consists of choosing a "complementary" model, a "parallel" restorative path and not an alternative justice to traditional criminal justice.