The Basic Principles were prepared by an Expert Group convened late last year by the UN, and hosted by the Government of Canada.  The Expert Group in turn began with a preliminary draft developed by the Working Party on Restorative Justice of the Alliance of NGOs on Crime Prevention and Criminal Justice, as well as written comments on the preliminary draft submitted by 38 countries.

It is not entirely clear what status the Crime Commission’s action gives to the Basic Principles.  Normally, UN standards and norms in criminal justice are “adopted” by the UN, and that was what the Canadians had originally proposed.  However, it became apparent after several hours’ debate that the members of the Crime Commission were not ready to adopt standards without a paragraph-by-paragraph review.  This approach was rejected for several reasons:  first, because it would take far too long, and second because many country delegations objected that they were not sufficiently familiar with restorative justice nor adequately briefed by their relevant ministries to undertake the task.

Previous standards and norms were adopted prior to the establishment of the Crime Commission, and were debated during the Crime Congresses.  With creation of the Crime Commission, that legislative responsibility has passed to the Crime Commission.

Although the Basic Principles were not adopted by the Crime Commission, they do enjoy a status as guidelines.  The resolution takes note of the Basic Principles as the result of a UN Expert Group on Restorative Justice, and encourages states to draw from them as they develop and implement restorative justice programs.  The expressed view of a number of delegations was that this would give credibility and recognition to the work of the Expert Group while offering flexibility to governments in their application.

History

In April 2000, the Governments of Canada and Italy submitted a resolution to the UN Commission on Crime Prevention and Criminal Justice proposing that the UN develop international guidelines to assist countries in adopting restorative justice programmes.  The proposal was made in the aftermath of the Tenth UN Congress on Crime Prevention and Treatment of Offenders that had seen substantial country interest in restorative justice.

The Canadian-Italian resolution proposed that draft elements of a declaration of basic principles on the use of restorative justice be circulated to member states requesting comment on whether such an instrument would be helpful as well as specific comments on the substance of the annexed draft elements.  The Canadians and Italians were joined by 38 other sponsoring countries, and the resolution passed the Crime Commission and later was adopted by the Economic and Social Council.

In December 2000, the Secretary-General issued a note verbale inviting country comments on the Canadian-Italian resolution and its annexed draft elements.  By the end of May 2001, 37 countries had responded, as had 8 NGOs, two entities from within the UN (the Division for the Advancement of Women and the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia) and two UN Institutes.  Under UN rules, 30 country responses is required before it will convene an Expert Meeting to review comments received.

The Government of Canada offered to host the meetings, which were jointly organized by the Canada and the UN Centre for International Crime Prevention.

Meeting of the Group of Experts

Eighteen experts from 16 countries attended the meeting, together with eight observers representing UN Institutes as well as intergovernmental and non-governmental organizations.  David Daubney of Canada was elected Chairman of the meeting.  Mr. Manuel Alvarez of Peru, Ms. Jabu Sishuba of South Africa, and Ms. Galina Toneva-Dacheva of Bulgaria were elected Vice-Chairpersons.  Dr. Kittipong Kittayarak of Thailand was elected as Rapporteur.

Discussions lasted three-and-a-half days.  After opening greetings, introductions, elections of officers and adoption of an agenda, the Expert Group discussed the concept of restorative justice and its use in criminal justice systems in different parts of the world.  It then reviewed in detail a Report of the Secretary-General on Restorative Justice, which detailed the comments made by Member States and others to the draft elements of the basic principles circulated with the note verbale.  The Expert Group agreed that it was desirable to develop an international instrument on restorative justice, and that the draft elements provided a good basis from which to begin developing that instrument.

The Expert Group agreed that the purpose of basic principles was to assist Member States of the UN to adopt and standardize restorative justice initiatives in their justice systems, but not to make these mandatory or prescriptive.  Further, since theories of restorative justice continue to evolve, the Expert Group avoided using prescriptive or narrow definitions that might impede further development.  It added a Preamble in order to explain the concept of restorative justice for those who are not familiar with it.

The remainder of the meeting was devoted to point-by-point discussion of specific provisions of the draft elements of basic principles.  Through modification, substitution, deletion and adoption the Expert Group prepared its own proposed Declaration of Basic Principles.

In the final portion of the meeting, the Expert Group approved a Report of the Meeting of the Group of Experts on Restorative Justice, and made final revisions to the Declaration.  It was this Report and proposed Declaration that was submitted to the eleventh session of the Commission for Crime Prevention and Criminal Justice.

Daniel W. Van Ness

May  2002