Restorative Justice and the EU
Nicholas
McGeorge, Vice-chair of the UK’s Restorative Justice Consortium,
highlights some encouraging European developments in restorative justice:
Restorative
justice looks at offending in a different way from the traditional
Western criminal justice system by seeking to repair harm done by
the offender to the victim and to re-integrate the offender into
the community. Its emphasis is not on punishment but on healing.
At
the heart of restorative justice is victim/offender mediation, in
which both sides participate voluntarily. The EU has been actively
encouraging this process. Many member states already include such
activity for some parts of their criminal justice system. In Germany
there are some 400 victim/offender mediation centres; Austria has
played a pioneering role in developing a mediation model for juveniles;
in England and Wales nearly all first-time juvenile offenders go
before referral panels for victim/offender mediation; France, Finland
and Belgium have victim/offender services, predominantly for juveniles.
Of particular interest is that Belgium now has a restorative justice
co-ordinator in each of its 30 prisons. Besides arranging mediations
between victims and prisoners, the co-ordinators are developing
restorative justice practices within the prisons.
In
1999, the European Commission asked for more research and experiments
in victim/offender mediation and is currently establishing a network
of information and resource centres for restorative justice in each
member state.
The
Council of the EU – in this case the relevant ministers covering
criminal justice issues - adopted a Council Framework Decision on
15 March 2001, on the standing of victims in criminal proceedings
(2001/220/JHA). Initiated by the Portuguese government, the document
has a specific provision on mediation in criminal cases. Article
10 states that each member state will promote mediation where it
considers it appropriate and ensure that such mediation is taken
into account in criminal cases. Article 17 states that the Member
States shall comply with Article 10 before 22 March 2006.
Victim/offender
mediation has been clearly recognised as a practice that can both
benefit both victims and offenders. The decision should also have
considerable influence for the countries in central and eastern
Europe that are joining the EU, and which generally have only limited
experience with victim/offender mediation.
A useful
and straightforward task for Yearly Meetings in the EU to undertake
would be to ask their Governments what steps they are taking to
carry out the decisions in Articles 10 and 17.
Quakers
have been very involved in getting the UN to adopt basic principles
for restorative justice. These principles, adopted in 2002, should
be helpful both in underpinning the work of restorative justice
in the EU and helping Friends to spread restorative justice ideas
in their own countries.
UN
principles for restorative justice: www.restorativejustice.org.uk/unrjcrim.html
Return
to contents
The
European Court of Justice
The European
Court of Justice, based in Luxembourg, is the supreme judicial authority
of the European Community. It has the task of ensuring that European
Community law as set out in the founding Treaties, Regulations and
Directives is correctly interpreted and applied. The Court is composed
of 15 judges, one appointed from each of the EU Member States and
8 advocates-general. Since
it was set up in 1952 more than 10,000 cases have been brought before
the Court. To cope with that volume a second court was created in
1989, the Court of First Instance which also has 15 judges. The
jurisdiction of this Court is more limited and it deals with actions
brought by non-privileged applicants (private parties such as individuals,
companies or organisations directly concerned) against decisions
of European Community institutions. The aim of creating this second
tier was to enable the Court of Justice to concentrate on its essential
task which is the uniform interpretation of Community law.
The
Court of Justice fulfils its role as the supreme guardian of Community
law in several ways. It can be requested by the national courts
in the Member States of the European Community to provide a ruling
on the meaning or validity of a provision of Community law. This
is known as the Preliminary Ruling procedure. A
recent example of this was where an English court submitted a reference
to the Court on the validity of an EC Directive dealing with the
manufacture, presentation and sale of Tobacco products. The Court
of Justice upheld the validity of the Directive which bans the use
of descriptions such as “light” or “mild”
on tobacco product packaging.
In
addition to its role as “interpreter” of Community law
under the preliminary ruling procedure, the Court of Justice also
hears cases brought by the Commission against Member States for
their failure to fulfil obligations under Community law. A highly
publicised example of this concerned the ban on UK beef imports
by France. The Commission instituted an action against France before
the European Court of Justice for its failure to lift the embargo.
On 13 December 2001 the Court declared that France’s refusal
to lift its ban on correctly marked or labelled imports of British
beef and veal was unlawful and in breach of Community law.
More
commonly enforcement action by the Commission will concern a Member
State’s failure to implement an EC Directive by introducing
legal provisions in their national law. A significant number of
Member States have been brought before the European Court of Justice
for failure to properly implement the Habitats Directive which aims
to establish a community wide network of protected habitats and
their flora and fauna.
The
Court has contributed in a decisive fashion to defining the European
Community as a Community governed by the rule of law by laying down
two essential rules in its case law. The first is the direct
effect of Community law in Member States and the second
is the primacy of Community law over national law. The citizens
of Europe can now rely on the provisions of the Treaties, Community
Regulations and Directives in proceedings before their national
courts where those provisions are sufficiently precise and unconditional
and may seek to have national law disapplied if it is contrary to
Community law.
Important
cases in the fields of sex discrimination, freedom to provide services,
freedom of establishment, environmental protection and the Common
Agricultural policy have been determined by the European Court of
Justice. Its case-law has also contributed to protecting the social
and fundamental rights of European citizens, particularly with regard
to the right to equal treatment in the employment context. In the
case of Defrenne v Sabena (1976) the Court held that a treaty provision
establishing the principle of equal pay for male and female workers
was directly effective and therefore could be relied on by individuals
seeking to enforce their rights before national courts.
Among
the fundamental rights which the Court recognizes are the right
to freedom of expression, the right to property, the inviolability
of the home, the right to human dignity, the right to an effective
judicial remedy and the right to a fair trial. The Court also recognizes
the importance of the European Convention for the Protection of
Human Rights and Fundamental Freedoms although it is not legally
bound by the Convention.
Morag
Ferguson (Administrator), Research and Documentation Department,
European Court of Justice
Return
to contents
The
Convention Draws to a Close
As regular
Around Europe readers will be aware, the Convention on the Future
of Europe has almost completed its work. By the time this edition
of Around Europe comes out it is likely that there will be a completed
draft of the new Constitutional Treaty on the table: this is due for
the end of May 2003. The Convention then has a scant three weeks to
agree on their final version to be presented to Heads of State at
the European Council meeting on June 20 in Thessaloniki, Greece. The
final decisions will be made by an Inter-Governmental Conference (IGC)
of Heads of the EU Member States, planned for autumn 2003.
QCEA
is also coming to the end of its project, the Future of Europe:
Spiritual Values and Citizenship. The final report of this project,
entitled Values Matter: Quakers Reflect on Europe, is now available
(in English, French, German and Dutch). We hope that the report
will contribute to continued reflection among Friends and also act
as a useful reference for individuals and groups to take action
on European issues.
As
part of the project, we have followed the work of the Convention
from its conception, and Around Europe readers will have read our
comment and analysis of the process over the last 18 months. We
recognised in the Convention a new way of working which had the
potential to be truly representative, open, accountable and participatory:
in short, truly democratic. In recent weeks we have been gravely
disappointed with the failure of the Convention to live up to this
potential as it reaches what is perhaps the most crucial stage of
its work.
In
the final stages it seems that the agenda is being shaped primarily
by only one of the groups represented at the Convention, the governments
of the Member States. The push to finish the work of the Convention
by 20 June 2003 is artificial and creates the risk that the final
Constitutional Treaty presented by the Convention will not be as
well thought out as possible and there will not be sufficient scope
for consultation. Convention Members will not have the opportunity
to consult with their constituents, and the situation will be even
worse for NGOs, which represent the voices, concerns and interests
of citizens across Europe. It is sadly ironic that a body set up
to bring the EU closer to citizens has in the end been driven by
political priorities to rush through some of the most important
decisions to affect European citizens for many years.
Despite
these difficulties, QCEA will continue to monitor the Convention
and, subsequently, the work of the Inter-Governmental Conference.
Once the Convention completes its work, the decisions will be in
the hands of national governments, and therefore the Quaker message
will be more effective coming from the national rather than European
level. We strongly encourage Friends to approach their national
government ministers and national parliamentarians to raise the
following points, which have been drawn from the QCEA project:
- There
must be an equitable economic system within the EU, based on social
and environmental needs.
- The
EU must work with international institutions to create an equitable
global economic system. The EU must recognise that the aim of sustainable
development may sometimes conflict with European commercial interests
- The
EU must ensure that all people living within the EU, including those
who are not citizens of member states, enjoy the same rights. A
first step towards this would be the extension of EU citizenship
to non-EU nationals legally resident within the EU.
- The
EU must build on the European experience to work for peace and the
prevention of violent conflict worldwide. A worrying development
in the draft Constitutional Treaty is a requirement for Member States
to increase their military capabilities: we must let our political
representatives know that this is not acceptable.
Friends
may also want to consider keeping a careful eye on the presentation
of the Convention and IGC in their national media. It seems that
the tendency is to focus on institutional power struggles rather
than substantive issues.
The
Convention process has demonstrated the challenges of European integration
and the difficulty in reaching consensus among the states and peoples
of Europe. It is important that citizens continue to make their
voices heard and to push for a more inclusive, equal and open Europe.
Bronwen
Thomas
Values
Matter: Quakers Reflect on Europe
The
final report of QCEA’s Project on the Future of Europe is
now available in English, French, German and Dutch. Contact
the office for a copy or download
it from the website
Return
to contents
And
so the Family Grows…
After
sufi Muslims came to Quaker House in July 2002 to tell Brussels Friends
about their faith and answer our questions, I asked one of them, Mohamed,
once the meeting was over (and with some trepidation), what he thought
of us Quakers. His reply, which I have never forgotten, was “we
have found another branch of the Family”. What
has since been brought to mind by this young man’s gracious
answer are the words of Friend William Penn, when he said in 1693
‘we are all of one religion though the divers liveries we
wear in this life may make us strangers to one another still’.
(Was he referring to dogmas and creeds or/and what nowadays we might
call prejudices, conscious or not?). And yet again, there’s
Friend John Woolman who, when preparing to journey into First Nation
American territory in 1763 when the troubles of war were increasing,
said that ‘love was the first motion, that I might spend some
time with them, that I might feel and understand their life, and
the Spirit they live in, and if happily I might receive some instruction
from them’. This emphasis on love, and it being the first
motion, the use of ‘heart language’, and on ‘openings’,
is something I found in a great many writings of the Early Quakers,
and it had a huge impact on me!
We
do not appear these days to have a Love Testimony, at least not
in so many words, though we have Testimonies to Peace, Equality,
Social and Economic Justice etc. Surely, I ask myself, does not
all Quaker ‘action’ flow from this love, the love that
the Early Quakers talked so openly about; is it not the basis of
everything we do to stimulate and encourage a culture of peace,
combat racism, stimulate prison reform, promote economic justice
for the disfavoured, celebrate diversity in society, and work with
others of like mind? Is it not the basic lubricant of the ‘political’
work which QCEA does, thereby setting it apart from secular based
NGOs? Is it really based on notions that ‘there is that of
God in all people’, or on something more intimate, that all
people are our brothers and sisters, fellow Friends of Truth, Children
of the Light?
Perhaps
in the end, such distinctions don’t really matter, with actions
speaking louder than any notion. Thanks to an initiative by the
Monthly Meeting clerk, we as ‘the Quaker Community’
in Brussels shall for the first time be one of the ‘staging
posts’ for this year’s inter-religious pilgrimage visiting
the Brussels Central Mosque, a Dominican church, and a Tibetan Buddhist
pagoda, as well as Quaker House. The sufi, in the form of les Amis
de l’Islam (Friends of Islam), seem to have taken a liking
to Quaker House, and will be holding some of their meetings there
as they explore ‘thérapie de l’ame/therapy for
the soul’ and plan for a 2004 conference on educating Brussels
youth towards a culture of peace.
Alan
Barber, Brussels Meeting,
Belgium
and Luxembourg Monthly Meeting
Return
to contents
Back
to the main Around Europe page |
