Proposed Restorative Justice Legislation in Brazil
In late 2005, the Commission of Participatory Legislation of the Brazilian House of Representatives held a public discussion on restorative justice. Tasked with bringing civil society organizations into the democratic process, the Commission sponsored the hearing at the request of the Instituto de Direito Comparado e Internacional de Brasilía. As a part of its intervention, the Instituto provided the Commission with draft restorative justice legislation for consideration.
Using the UN Basic Principles on the use of restorative justice programmes in criminal justice matters – endorsed by ECOSOC in 2002 – as a frame of reference, the draft legislation sets forth guidelines for the regulation of restorative justice processes.
The draft legislation calls for changes to allow judges and prosecutors to divert criminal and minor cases to restorative processes. Facilitators would assist victims, offenders, and where appropriate others impacted by the crime in making decisions about what should take place. These processes include mediation, conferencing, and circles. They are to be voluntary and are to recognize principles of human dignity, impartiality, reasonableness, proportionality, cooperation, informality, confidentiality, mutual respect and good faith. They are also to be multidisciplinary.
In an attempt to clear impediments to expansion of restorative justice in Brazil, the draft legislation proposes changes to three laws related to criminal justice and establishes a legal framework for restorative justice.
According to the draft legislation, the agreements arising out of restorative processes should contain elements of reparation, restitution, and community service. After the restorative process is complete, the agreements will be sent to the presiding judge and serve as the basis of the judicial decision. However, if the principles of reasonableness and proportionality are not reflected, the judge can reject the agreement.
One of the legislation's innovations is creation of local restorative justice centres to offer restorative justice and other services to communities. These centres will be staffed by administrative personnel, an interdisciplinary team responsible for technical oversight, and facilitators. Experts in psychology and social work are to be integral parts of these teams. Along with restorative processes, the draft legislation calls for the development of a network of social services to facilitate the reintegration of both offenders and victims into society.
During the public session on restorative justice, judges, researchers and practitioners provided testimony on restorative justice as a tool for justice reform in Brazil. This included discussing the problems faced by the Brazilian system, the use of restorative justice internationally, the meaning of restorative justice, and current pilot projects in the country.
The Commission on Participatory Legislation is currently taking comments on the draft restorative justice legislation.
Sources used:
Debate sobre o paradigma da Justiça Restaurativa como alternativa à Justiça Criminal.
Projeto de Lei Sobre Justiça Restaurativa na Câmara Dos Deputados .
Personal Communication from Renato Socrates Gomes Pinto of the Instituto de Direito Comparado e Internacional de Brasilía.
Lynette Parker
March 2006
