Restorative justice and the consistency of law

Safonov Vladimir Nikolaevich ORCID: 0000-0002-3676-1894 PhD in Law Associate Professor of the Department of Public Law, St. Petersburg State University of Aerospace Instrumentation; SZF Federal State Budgetary Educational Institution of Higher Education "Russian State University of Justice" (St. Petersburg). 197046, Russia, Saint Petersburg, Alexandrovsky Park, 5A svn205@gmail.com Other publications by this author

The current state of the Institute of restorative justice is the subject of a separate and ambiguous assessment. We anticipate objections, because the authors of most publications on this topic positively and unanimously insist not only on a "great bright future", but on the present of the considered form of conflict resolution.  One could agree with this if modern doctrine and law enforcement practice would provide an exhaustive answer to the questions: 1) What is restorative justice? 2) how does it relate to such categories as: criminal procedure, alternative forms of resolution of criminal law conflicts, mediation, compromise with crime, exemption from criminal liability? It seems that by now the optimistic expectation of the effectiveness of alternative criminal prosecution is not so obviously embodied in reality. They cannot but draw attention to themselves: the inconsistency of terms related to alternatives to current legal proceedings, differences in understanding their content, intra- and inter-industry boundaries, the lack of criteria for effectiveness and persuasiveness that a particular conflict is resolved by means of alternative rather than traditional justice, etc. The temporal "limits" of outwardly convincing arguments for the value of restorative justice are coming to an end, however, meaningful answers to the above questions from the standpoint of the system of law ^{[9, pp. 39-43]} are not given.All this determines the appeal to the problem of restorative justice.

The object of the study was the legal relations arising in connection with alternative forms of resolution of criminal law conflicts, which, along with other legal relations, form restorative justice. At the same time, a systematic approach to the study was followed: these relations were considered in the context of historical-legal, comparative-legal and proper legal approaches.

The subject of the study is criminal law norms, which researchers associate with the implementation of restorative justice approaches. In particular, these are the provisions of Articles 75, 76, 76.1, 76.2 of the Criminal Code of the Russian Federation, the corresponding norms of the Criminal Procedure Code of the Russian Federation, as well as the provisions of the Special Part of the Criminal Code of the Russian Federation, providing grounds for exemption from criminal liability in cases of commission by the subject of crimes of appropriate positive post-criminal actions. The mentioned norms of the Criminal Code of the Russian Federation are considered, among other things, in connection with the provisions of the Federal Law "On Alternative Dispute Settlement Procedure with the participation of an Intermediary (Mediation Procedure)" dated 07/27/2010 No. 193-FZ.

The purpose of the study is to study the essence and content of both alternative legal proceedings and its types (forms); the ratio of concepts: "restorative justice", "alternative justice", "compromise with crime", "mediation". The objectives of the study were also: intra-industry and inter-industry limits of inclusion of alternative forms of justice in judicial activity.

The research methodology is based on the wide application of general (generalization, observation), general scientific (dialectical, logical, systemic), private scientific (sociological, historical, axiological) and special (comparative legal, formal legal, method of legal hermeneutics) research methods.

Special methods were used mainly in the study of the boundaries and limits of the spread of forms of alternative proceedings.

The results of the study

1) Prerequisites for the development of alternative forms of settlement of criminal law conflicts

The development of alternative justice and its various forms is a consequence of many reasons. The search for the most successful procedures that would meet the needs of society is conditioned by many factors, including: the humanization of society and the criminal policy of the state; saving of material resources; procedural savings; minimizing harm from crimes on the terms of concessions from the state; the desire to reduce tension and confrontation in society, etc.

Thus, Helmut Khoury, an expert in the field of alternative justice, professor at the University of Freiburg, argues that "... alternative measures to reduce criminal conflicts in society have a long and obviously successful history" ^{[21, p. 175]}. There are also more categorical statements. Thus, the well-known researcher of conciliation procedures J. Braithwaite argues that "... nothing is still known about a culture in which the restorative tradition is not rooted" ^{[14, p. 57]}, and N. Rulan believes that the initial form of conflict resolution was negotiation, reconciliation and reparation, and blood feud was used to some extent as an "extreme a measure", which was rarely resorted to ^{[28, p. 172]}.

Conciliation procedures have been known since the ancient world. Since the era of Roman law, arbitration courts have been focused on conciliation and conciliation procedures. Christian religious thought, which proclaimed the principles of reconciliation in public life, including in the settlement of private law disputes, was not on the sidelines either. O.V. Karyagina, having studied the retrospective of the idea of reconciliation and mediation in domestic and foreign political and legal thought, concludes: "Referring to the historical heritage of domestic thinkers allows us to assert that the application of mediation procedures and their most typical forms – arbitration and settlement agreements – are an integral part of the Russian legal culture ^{[14, p. 56]}. Abstracting from the examples of specific historical and legal monuments, three main stages in the development of ideas about reconciliation and mediation in the Russian history of legal and political teachings are also named. Russian Russian (Slavic) civilization The first stage is associated with archaic concepts of reconciliation and mediation in substantiating the idea of preserving the integrity of Russian (Slavic) civilization; the second stage is associated with the development (or denial) of the idea of the identity of the Russian people in the works of Russian representatives of conservative and liberal thought. The third stage is the development of the concept of restorative justice ^{[14, p. 59]}.

The authors practically agree that the practice of restorative justice originally originated in the countries of the Anglo-Saxon legal system (USA, Great Britain, Australia), although opinions differ on the first such experience: from the 60s of the nineteenth century ^{[14, p. 59]} to the 70s of the twentieth century ^{[7, p. 14]}. The second date seems more convincing if we take into account not only the practice, but also the rationale for the idea of restorative justice.

2) Alternative forms of settlement of criminal law conflicts (incomplete list and brief analysis)

The idea of alternative or restorative justice was brought about by disappointment in the possibilities of traditional justice, often referred to by researchers as punitive, imperative-oriented criminal punishment. In a fundamental monograph devoted to alternatives to criminal prosecution in modern law, L. V. Golovko notes: "In recent years, the trend of interest to us has turned out to be so global on a global and European scale that it has been reflected in international documents" ^{[7, p. 14]}. In particular, the researcher recalls that on September 17, 1987, the Committee of Ministers of the member States of the Council of Europe in its official documents not only approved the idea of an out–of-court settlement of criminal procedural conflicts, but also proposed specific models of such a settlement after summarizing the accumulated experience.

Terminologically, alternatives to traditional justice are interpreted in different ways: as alternative justice, as restorative justice, or as mediation. Thus, L.V. Golovko states: "Having despaired of seeing punishment as an exclusively utilitarian measure capable of actually, and not only in theory, correcting, readapting the criminal, reducing the crime rate, etc., it is again increasingly perceived in a Kantian way, i.e. as retribution or, in other words, restoring the balance violated by a criminal act". ^{[7, p. 12]}.

National legislation shows their accumulated "arsenal" of methods for resolving criminal law conflicts. In England and Wales, these are: prevention and mediation, in Scotland – the concept of expediency practiced by fiscal prosecutors with broad discretionary powers, coupled with the practice of warning against violations of criminal law, and later – a new way of exemption from criminal liability – a fiscal fine applied to a certain number of cases of criminal law conflicts. Sources indicate that the search for new forms of criminal law regulation does not always find its supporters, they also meet with harsh criticism.

Modern France is characterized by the most active implementation of alternative resolution of criminal law conflicts on the basis of various mediation practices that have gradually acquired legal forms. The following example shows the level of importance of alternative technologies in French legal proceedings. In accordance with Articles 48-1 of the Code of Criminal Procedure of France, the decision to abandon the traditional form of criminal procedural response and to apply its alternative determines the conclusion of the prosecutor. If the latter comes to the conclusion that an alternative method will be more effective in terms of preventing a new crime and more effective compensation for harm to the victim, then the latter is elected.

The legislations of Belgium and the Netherlands have known alternative forms of legal proceedings even earlier than those of England and Wales, and the most relevant form of such settlement of a criminal law conflict is called a transaction. Its meaning is the voluntary deposit of funds or the fulfillment of another financial condition established by the prosecutor in order to avoid prosecution and trial. For the sake of objectivity, it should be noted that the transaction applies to a limited number of cases of criminal law conflicts.

L.V. Golovko draws attention to the level of mediation in the public criminal process in Belgium: in relation to this state, it is appropriate to talk about "mediation procedural law" ^{[7, p. 147]}.

    There are obvious moves towards alternative justice in Germany as well: §153a of the Criminal Procedure Code of Germany allows for exemption from criminal liability on condition of payment of a small sum to the state treasury. Moreover, this alternative is not the only one.

Special attention should be paid to the fundamental works of Prof. H.D. oglu Aliqperov, devoted to compromise with crime, in which compromise is also a form of alternative resolution of a criminal law conflict when it is not necessarily related to punishment ^{[1; 2]}. In particular, the scientist considers voluntary compensation for the harm caused, prevention of the consequences of the crime committed by the guilty, etc. to the norms that allow compromise ^{[1, pp. 83-85]}. In general, H.D. oglu Alikperov sees the understanding of a compromise with crime as follows: "The norms of criminal legislation that allow compromise should be understood as norms in which a person who has committed a crime is guaranteed release from criminal liability or mitigation of punishment in exchange for such a person committing acts defined in the law and ensuring the implementation of the main tasks of criminal- legal fight against crime" ^{[1, p. 65]}.

In order of enumeration, we will name other types of alternative justice: the German "juvenile mediation", the Austrian subjective "right to mediation", the Swedish institute of "summary punishment in the form of a fine, the "consensus area" of the Portuguese CPC, agreements (transactions) on the admission of guilt of Anglo-Saxon and continental law. Having received official recognition in the nineteenth century in the United States, "plea deals" in various analogies became widespread in a number of European countries. The combination of models of traditional and alternative process allowed European scientists to identify "four abstract models of criminal justice or four forms of judicial proceedings" ^{[7, pp. 206-207]}.

The American model of alternative justice, called restorative justice, deserves special attention. It originated on the North American continent in the 70s of the twentieth century, and in the next decade it was consolidated in the research of the American sociologist Howard Zera, who "justified the confrontation of models of punitive and restorative justice. The latter has the central task of restoring the rights of persons who have suffered from crime in one way or another. In other words, the just punishment of a criminal is replaced by taking measures to restore the position of victims lost as a result of the commission of a crime" ^{[27, p.276]}. Meaningfully, the process of restorative justice in the United States and continental European countries boils down to a meeting of the perpetrator, the victim of the crime and a third party — a specially trained employee, the admission of guilt by the criminal, reaching an agreement on how the offender should correct the harm caused by the crime. The agreement should include an apology from the perpetrator, restoration of the rights of the victim of the crime, indicating a specific way to make amends. Criminal punishment is outside the scope of the agreement ^[35]. The signing of the agreement allows the offender to avoid imprisonment when committing a minor crime, and when committing a more serious act gives a chance for appropriate sanctions with an increase in the probability of a suspended sentence. The researchers note that the agreement concluded within the framework of restorative justice between the offender and the victim is relevant for the court ^{[3, pp.88-93]}. It is characteristic that after some time restorative justice became so massively interpreted as a synonym for alternative justice and mediation ^{[18, pp. 60-64; 24, pp. 38-40; 29, pp.463-469]} that the founder of the concept of restorative justice, Zer Howard, had to point out the difference already at the beginning of the XXI century these practices ^{[13, pp. 10-11]}.

It should be recognized that in the mass consciousness, and for most modern researchers, these boundaries have become metaphysical. Helmut Khoury, a well-known German scientist, is categorically in favor of expanding mediation as a form of restorative justice and an alternative to the traditional criminal process: "The classical judicial procedure is clearly ineffective in relation to the reintegration of criminals, which professional mediation is able to at least partially correct" ^{[21, p. 176]}. In the works of well-known Western and Russian scientists, there are isolated studies of the problem of how alternative justice, alternative ways of resolving criminal law conflicts, mediation and restorative justice relate to each other ^{[22, pp. 120-129]}.  Derek Brooks and Ian McDonagh, specialists at the Scottish Restorative Justice Counselling and Training Service and Mediation Counselling and Training Service, insist: "The term 'mediation' is an inappropriate description of what can happen [as part of a restorative meeting]. In the process of resolving a conflict or dispute with the help of a mediator, it is considered that the parties are morally on the same level, and they often assume obligations that they may have to fulfill together. The neutral language of mediation can be misleading and even offensive in many cases. Although the term "mediation" was adopted at the early stages of the development of the field of restorative justice, it is increasingly being replaced by terms such as "conference" or "dialogue" for the reasons outlined above" ^{[4, pp. 108-123]}. Situations related to restorative justice as a consequence of a crime, according to these experts, require strict consideration of the sensitivity and selectivity of the technology for dealing with negative consequences ^{[4, pp. 108-123]}.

Most modern studies conclude that: restorative justice focuses primarily on restoring the rights of the victim; its main technology is mediation – reconciliation of victims and offenders through mediation by a third (independent) mediation – mediation, intercession, intercession); this form of settling a criminal conflict involves the integration of the offender with society, reducing recidivism, reducing the level of tension in society ^{[17, pp. 42-44; 19, pp. 246-251; 23, pp. 63-66; 25, pp. 6-13;]}. Mediation as an alternative form of criminal prosecution of minors, Yu. V. Derishev and E. E. Zabuga ^{[11; 12]}, V.V. Konin ^{[17, pp. 42-44]} are distinguished.

Thus, the logic of reasoning directly or indirectly leads to the conclusion that restorative justice is an option (type) of alternative (non-repressive) resolution of a criminal law conflict. In terms of the relationship between restorative justice and mediation, everything is not so linear and not synonymous, as stated in many studies: some researchers consider these concepts synonymous, others (especially Western ones) do not put an equal sign between them. The position of the authors of the textbook "Forms of restorative justice in criminal proceedings" by I.Y. Pankina, V.V. Konin and T.N. Dolgikh seems attractive. They interpret restorative justice as an alternative form of criminal prosecution. These researchers name mediation and transaction as forms of restorative justice ^{[25, pp. 28-83]}.

 It is easy to see that the concept of restorative justice, "breaking away" from its American roots, "set sail on its own," not limited in its original version to the communication of the criminal with the victim. At least in Russian realities, restorative justice has been interpreted more broadly, but the meaning–forming landmark - the interest of the victim has not lost its significance. As already mentioned, this was 40 years after the substantiation of the concept of restorative justice and was the reason for the appeal of its American creators to the issue of distinguishing restorative justice from mediation ^{[12, pp. 10-11; 6, pp. 6-23]}.

In Russian literary sources, various aspects of restorative justice have become the subject of discussion: the concept, forms, and most relevant areas (categories of cases) of application. M.E. Rymko and N.A. Smirnova define restorative justice as a systemic set of measures legally established by the state to respond to a committed socially dangerous act, the fundamental task of which is to restore violated public relations, and compensation for harm caused by a crime by reconciling victims and criminals, in order to meet the needs of victims and compensate them for damage, as well as the re–socialization of the accused ^{[29, p. 466]}. V.V. Konin associates the advantages of restorative justice with the consideration of cases against juvenile offenders ^{[17, p. 4 - 44]}.

3) Restorative justice from the standpoint of implementation in the legislative and law enforcement spheres

Familiarization with the doctrinal sources on the problem under consideration shows the degree of scientific interest: in domestic legal science in the last two decades, more than one hundred scientific publications have been devoted to restorative justice, mediation and alternative forms of resolving criminal law conflicts. The range of research is very wide. Conclusions are drawn about the suitability of the mechanism of restorative (alternative) justice for the settlement of criminal law conflicts in criminal cases against minors ^{[24, pp. 38-40; 17, pp. 42-44]}, conflicts on ethnic grounds ^{[8, pp. 78-82]}, economic disputes ^{[20, pp. 146-149]}. However, restorative justice is most often called as the most effective mechanism for restoring the rights of a crime victim ^{[16, pp. 25-33]}.

It would seem that, both in theory and in practice, one should expect the inevitable diffusion of alternative forms of legal proceedings into a mass of criminal law conflicts. However, the lack of a sufficient regulatory framework and clear criteria for the success of alternative justice (within the framework of a real criminal restorative justice), and convincing statistics do not allow us to assert the effectiveness of such. Adherents of the traditional criminal process strongly reject forms of alternative settlement of criminal law conflicts "for lack of sufficient scientific grounds." In particular, the head of the Department of Criminal Policy at the Academy of the Ministry of Internal Affairs of Russia, prof. A.V. Pobedkin, states: "It is not always possible to stop moral suffering by compensating for damage in property terms. The desire for retribution, if you will – revenge, which is the basis of any retribution – is the normal desire of the victim… In this regard, there is no need to rely on the concept of "restorative justice" to restore the rights and legitimate interests of the victim. Effective protection of the victim can and should be carried out within the framework of a public criminal process, which is sometimes misrepresented as "punitive" ^{[27, p. 25]}.

What are the Russian practical realities in the field of dissemination of the experience of restorative justice and to what extent do they indicate that the result belongs to alternative forms of resolving a criminal conflict? In our opinion, mediation legislation is formed in a logical sequence, but not quickly enough. It is also limited to private–public industries. The second sign of the process is the interest in promoting forms of restorative justice on the part of the judicial community. For example, in 2007, in order to develop a system of pre-trial settlement of legal disputes, at a meeting of the Council of Chairmen of the Courts of the Ural Federal District, it was decided to prepare and implement a pilot project on the basis of this district for the development of alternative methods of resolving legal conflicts. In the second quarter of 2008, the concept was supported by the Supreme Court and the Supreme Arbitration Court of the Russian Federation ^{[25, pp. 18-21]}.

  On January 1, 2011, the federal law "On Alternative Dispute Settlement Procedure with the participation of an intermediary (Mediation Procedure)" dated 07/27/2010 No. 193-FZ entered into force (currently in force is the version dated 07/23/2013, hereinafter — Law No. 193-FZ, the law on mediation). Recall that in accordance with Part 2 of this law, this legal act regulates relations related to the application of mediation procedures to disputes arising from civil, administrative and other public legal relations, including in connection with the implementation of entrepreneurial and other economic activities, as well as disputes arising from labor and family legal relations. Part Three states that if disputes arise from other relationships, this Federal Law applies to relations related to the settlement of such disputes through the application of mediation procedures only in cases provided for by federal laws.

Scientific publications on the effectiveness of this law are contradictory: from the statement of an insignificant role in reducing the burden on judges and reducing conflict in some regions and spheres of legal proceedings ^{[20, pp. 146-149]} to the obvious demand for mediation opportunities in others ^{[32, pp. 288-292]}. This difference may be explained by the different activity of the subjects of the implementation of the law in question. Thus, the mediation efforts of the parties to a certain extent are optional, as they are limited in the criminal procedural matter.

Recent trends in the structure of crime (an increase in the number of remotely committed crimes, victimization of a significant number of citizens through the information space, frequent fraudulent seizure of property of crime victims, lagging behind effective counteraction against this background), all this, coupled with mental causes ^{[30, pp. 182-188]}, may cast doubt on the effectiveness of the idea of restorative justice. To a certain extent, the restraint of the practice of alternative settlement of criminal law conflicts is determined on the one hand by the restrictive effect of the principles of criminal procedure ^{[26, pp. 84-94]}, and on the other hand, this is compensated by the expansion of the scope of the principle of humanism through the adoption of new norms or improvement of existing ones. For example, in 2016, Article 76.2 of the Criminal Code of the Russian Federation (exemption from criminal liability with the imposition of a court fine) was adopted, which turned out to be so in demand in law enforcement practice ^{[31, pp. 81-91]}. The practice of widespread application of Article 76 of the Criminal Code of the Russian Federation (exemption from criminal liability in connection with reconciliation with the victim) is also known.

Bearing in mind the above position of rejection of the idea of restorative justice and the primacy of criminal procedural forms of criminal procedure, it is appropriate to ask on whose balance should be attributed the practice of exemption from criminal liability on the grounds of Articles 76, 76.1, 76.2 of the Criminal Code of the Russian Federation: public (traditional) criminal process or restorative justice? However, this "statistical" aspect is not decisive.

Assessing the prospects of mediation and other conciliation procedures, O.V. Petrova is right in her conclusions: 1) conciliation procedures in the framework of cases of private prosecution or exemption from criminal liability in connection with reconciliation with the victim cannot adequately realize the potential of restorative mediation; 2) the most important aspect and obstacle in the development of conciliation procedures are manifested in the actions of the principle of inevitability of responsibility and the principle of publicity itself ^{[26, pp. 84-94]}.

The mediability of each criminal law conflict should be checked ^{[33, pp. 7-14]}. A very restrained approach should be taken to the dissemination of reconciliation in cases related to family and gender-based violence ^{[26, pp. 84-94]}, it is unacceptable in situations with crimes of organized criminal groups ^{[34, pp. 5-8]}. Nevertheless, the conciliatory potential of the parties cannot be ignored, taking into account its many positive aspects ^{[15, pp. 41-46]}. Moreover, it is consistent with the obvious development of the principle of humanism in substantive and procedural law.

It is appropriate to ask about the problems that slow down the progress of the institute of restorative justice. There is a mismatch of terms related to alternatives to current legal proceedings, the uncertainty of their intra- and inter-industry boundaries, the uncertainty of efficiency criteria, the unconvincing arguments that a particular conflict is resolved by means of alternative rather than traditional justice, etc.

 However, all of these are rather a consequence, the reason for the insufficiently defined status of restorative justice is seen in another way. It seems that these problems go into the cornerstone of the legal principle of systemic law. The consistency of law is a necessary condition for its balanced regulation of legal relations. On the one hand, the system of law has an integrating character, on the other hand, it allows taking into account the peculiarities of legal relations related to various branches of law and reflecting this in the norms of different branches of law. The consistency of law, according to A.V. Denisova, is a characteristic feature of law, its branches, including criminal law, which means that law is an internally ordered, coordinated system of legal norms and legal phenomena. Consistency indicates that the law, or rather its components, perform their regulatory and protective functions only in interaction with each other ^{[9, pp. 39-43; 10]}.

Discussing the issue of the relationship between the consistency of law and the consistency of legal norms, M.V. Voronin concludes: "The qualitative composition of the types of legal norms is one of the clearest manifestations of the systemic nature of law, illustrates the polysyllabic structure of law functionally determined by objective and subjective factors" ^{[5, p. 85]}.

It is obvious that restorative justice is structurally an interdisciplinary institution that extends to legal relations in the field of criminal, criminal procedure, family, civil, civil procedure, and administrative law. Therefore, the subject of regulation of this institution in the field of criminal law and criminal procedure should be more accurately fixed at the legislative level, clearly observing the intra- and inter-sectoral boundaries of legal regulation. An example of this is the following legislative novel by the Belarusian legislator. In the Republic of Belarus, the Law of May 26, 2021 introduced article 30-1 into the CPC, which regulates the reconciliation of the accused with the victim: It is carried out on the basis of a voluntary expression of will to resolve the conflict (dispute) between them that has arisen in connection with the commission of a crime, including by concluding a mediation agreement.

Conclusions.

We consider it appropriate to propose some results of the discussion of the problem of restorative justice as an alternative form of settlement of criminal law conflicts.

1. Alternative forms of settlement of criminal law conflicts have humanistic, moral, psychological, material and other foundations, which is why they are in demand by society.

2. In terms of content, restorative justice is an interdisciplinary institution that extends to civil law, civil procedure, administrative, criminal and criminal procedural relations. However, currently it is legislatively extended to branches of private law. In public branches of law, the mediation function is performed by the parties due to the lack of norms.

3. The current state of the institute of restorative justice in the criminal and criminal procedure legislation of the Russian Federation does not correspond to consistency as an integrating principle of law, which implies its further intra- and inter-sectoral improvement.

4. At the moment, the institute of restorative justice is limited by the strict framework of the principles of criminal procedure (the inevitability of responsibility and publicity), therefore, its further promotion presupposes an appropriate doctrinal justification for this form of alternative resolution of criminal law conflicts and legislative consolidation as a result of overcoming the mentioned conflict of law norms.

5. The sectoral implementation of the idea of restorative justice involves the introduction of relevant novelties into the Criminal Code and the Criminal Procedure Code of the Russian Federation, which would set out: the content and subject composition of the mediation procedure, the limits of application of the norms of restorative justice, taking into account the categoriality (public danger) of crimes, the importance of concluding a conciliation agreement, etc.

6. Further doctrinal development of the categorical apparatus and criteria for the effectiveness of restorative justice is necessary.