International Journal on Criminology Volume 3, Number 1, Spring 2015 | страница 7

Restorative Justice in the Penal Reform in France
participants, showing impartiality and considerate neutrality. The measure itself is also
independent of both the judiciary institution and the legal authorities.
The restorative justice measure is placed “under the supervision of the judiciary
authority, or, at their request, of the penitentiary authorities.” The judiciary authority, sole
guarantor of the respect of individual freedoms, is in fact best equipped to provide this
supervision. It involves ensuring that fundamental human rights are respected, as well
as the general principles of criminal law and the rights and interests of the participants
throughout the restorative process. It can be manifested in different ways. These are
primarily: the formal progress of the process; a deontological failing on the part of the
facilitator adversely affecting a participant; homologation (or even integration into the
underlying decision) of the agreement protocol; or the contents of the agreement.
However, control over the implementation of the restorative process comes up
against the obstacle of the confidentiality principle. Strictly applied, this principle allows
no restrictions, unless “the parties have agreed otherwise, and except in cases where there is
a higher interest relating to the necessity of preventing or sanctioning crimes” committed, in
the process of being committed, or about to be committed, and which endanger persons. 7
The information divulged must concern only “the proceedings of the measure” and not
the contents of the exchanges. It must only be addressed to the public prosecutor. This
principle of confidentiality is essential for the optimum effectiveness of the restorative
meeting and dialogue. It applies to the coordinators and facilitators of the measure,
as well as the participants themselves. Its corollary is the ban on using participation
in a restorative justice measure within a subsequent penal procedure, including if the
restorative meeting fails.
2 - The Methods for Recourse to a Restorative Justice Measure
Conditions for Recourse to a Restorative Justice Measure
Restorative justice measures appear widely relevant and applicable (A). However,
the law says little about how such measures should be proposed. Consequently, there
is nothing to prevent an individual taking the initiative in proposing one—quite the
opposite. In line with the conditions explained above, the current experiments in France
are working toward a potential operational model adapted to each type of measure (B).
A. The Applicability of Recourse to a Restorative Justice Measure
The first paragraph of article 10-1 C.pr.pén. makes the restorative justice measures
widely applicable: “In any criminal procedure and at all stages of the procedure, including
the execution of the sentence.” This wording leaves all participants significant room
for maneuver (Sayous 2012) 8 . A restorative justice measure can be proposed during
the investigation, the preliminary inquiry, the judgment hearing, or the execution of
7
IFJR, Code de déontologie de l’IFJR, art. 10. (IFJR Deontological code).
8
Nevertheless, it raises questions about applicability concerning procedures that are controlled outside of
the Code of Criminal Procedure. The current reform of the Ordonnance of February 2, 1945, should expressly
refer to this, particularly regarding restorative conferences.
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