Handbook on Restorative justice programmes

Judicial supervision: “The results of agreements arising out of
restorative justice programmes should, where appropriate, be judi-
cially supervised or incorporated into judicial decisions or judge-
ments” (para. 15). Whenever that occurs, the outcome should have
the same status as any other judicial decision. This means that in
most systems the outcome could therefore be appealed by the
offender or the prosecution. These outcomes should preclude prose-
cution in respect to the same facts.
HANDBOOK ON RESTORATIVE JUSTICE PROGRAMMES

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Failure to reach an agreement: Failure to reach an agreement
should not be used against the offender in subsequent criminal jus-
tice proceedings.
No increased punishment for failure to implement an agree-
ment: Failure to implement an agreement made in the course of a
restorative justice process (other than a judicial decision or judge-
ment) should not be used as justification for a more severe sentence
in subsequent criminal proceedings.
The Basic Principles recommends that Member States consider establish-
ing guidelines and standards, with legislative authority when necessary, to
govern the use of restorative justice programmes. There are always ques-
tions about whether legislation is necessary in order to introduce restora-
tive justice programmes. In most instances, the question commands a
local response that takes into account the current system and legislation
and the nature of the restorative justice initiatives to be implemented.
This will be discussed further in chapter 4.
The Basic Principles makes it clear that, in some cases, it may be sufficient
to adopt policies and clear guidelines to guide the new programmes and
establish the necessary normative framework. They stipulate (in para. 12)
that such guidelines should cover inter alia:
(a) The conditions for the referral of cases to restorative justice
programmes;
(b) The handling of cases following a restorative process;
(c) The qualifications, training and assessment of facilitators;
(d) The administration of restorative justice programmes;
(e) Standards of competence and rules of conduct governing the
operation of restorative justice programmes.
In some countries, the law regulating mediation processes prescribes the
establishment of an ethical commission. Such a commission can have two
functions: providing a complaints procedure for victims, offenders and
others involved within the restorative process on the one hand, and elabo-
rating ethical principles and guidelines for restorative justice practitioners
on the other hand.
Within the Council of Europe, Recommendation No. R (99) 19 of the
Committee of Ministers to Member States Concerning Mediation in Penal
Matters contains very similar dispositions and recommends that legi-
slation be adopted by Member States to facilitate mediation in penal
matters.
chapter 3