Restorative justice in socioeconomic and corruption crimes

Restorative Justice in socioeconomic and corruption crimes International Conference Università degli Studi di Perugia 28-29 April, 2022 Natalia Pérez Rivas University of Santiago de Compostela natalia.perez[email protected] RESTORATIVE JUSTICE IN SOCIOECONOMIC AND CORRUPTION CRIMES Natalia Pérez Rivas Assistant Professor in Criminal Law University of Santiago de Compostela natalia.perez.riv[email protected]s Restorative justice in socioeconomic and corruption crimes © 2022 by Natalia Pérez Rivas is licensed under CC BY-NC-ND 4.0 Material Competence of the EPPO Offences affecting the financial interests of the European Union (fraud in respect of nonprocurement-related expenditure, fraud with respect to procurementrelated expenditure, Fraud with respect to revenues other than VAT, VAT fraud, money laundering, bribery, embezzlement). Participation in a criminal organization focused on committing PIF offences. Offenses that are inextricably linked to those falling in the first cluster PIF Crimes 3 Supra-individual legal assets of exclusive state ownership •Owners: the state or a part of the administration. •The only ones who could legitimately defend these interests should be the Public Prosecutor's Office and the State Attorney's Office (e.g. offences against public order or offences against the Constitution). Supra-individual legal assets of shared state ownership •Owners: ownership is held jointly by all citizens, the international community or humanity itself. •The state assumes the "representation" of the protected interest, although not exclusively (e.g. tax fraud, bribery, embezzlement, etc.). Is the response of the traditional penal system satisfactory? 4 Victim •They protect supra-individual legal interests (of a collective or diffuse nature). •Neither the community owning the interest nor the associations acting on its behalf are recognised as injured parties. •When the state acts on our behalf, it weakens our sense of community and makes us invisible as victims. Damage •The damages are not always direct and economic in nature, but social (social damage), indirect and diffuse (affecting an indeterminate group of people, society as a whole). •e.g., loss of public confidence in certain institutions Reparation •Civil liability ex delicto (arts. 109 et seq. CC) is granted in favour of individuals or groups of individuals identified when it is proven that they have suffered damage as a direct and necessary consequence of the criminal act. •There is no channel for claiming reparation for the social damage resulting from these offences. PIF crimes and restorative justice: problematic issues Socioeconomic and corruption crimes present different characteristics from classic crime - the hard core of criminal lawwhich represent, at the very least, several challenges for carrying out restorative justice processes. 5 •Absence of an identifiable individual victim. •The victim is the collective, society, the State that is the owner of the legal interest protected. Victim •Problematic identification of the reparable damage or harm. •There is no direct damage or harm to be quantified and agreed in favour of the victim. Damage PIF crimes and restorative justice: challenges 1. Delimitation of the concept of restorative justice 2. Participation in restorative encounters: legitimation 3. Redefinition of the damages (material and immaterial) of a collective nature resulting from these offences. 4. Most appropriate restorative practice 6 Restorative practices: classification 7 Only when all three sets of primary stakeholders are actively involved, such as in conferences or circles, is a process “fully restorative.” Directive 2012/29/UE Victim A natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence (art. 2) The CJEU judgment C-205/2009 of 21 October 2010 held that “Articles 1(a) and 10 of the Framework Decision must be interpreted as meaning that the concept of 'victim' does not include legal persons for the purposes of promoting mediation in the criminal cases (…)”. However, 'the Framework Decision neither prevents nor obliges Member States to apply its provisions also in cases where the victim is a legal person'. 8 1. The crime in this area has been represented as "a violation of one individual against another", which appeals to personal victimisation 2. The positive effects of restorative justice for the victim have also traditionally focused on psychological or emotional benefits. 3. Difficulties in determining who acts as the representative of the legal person 4. The institutional representative is perceived as an impersonal authority figure, unable to convey to the offender the effects caused by the crime as would a natural person who has directly suffered the consequences of the crime Why only a natural person as victim in restorative justice? Supra-individual legal interest: procedural standing Directive 2004/35/CE on environmental liability with regard to the prevention and remedying of environmental damage Art. 12.- Request for action 1. Natural or legal persons: a) affected or likely to be affected by environmental damage b) having a sufficient interest in environmental decision making relating to the damage (…) What constitutes a ‘sufficient interest’ shall be determined by the Member States. To this end, the interest of any non-governmental organisation promoting environmental protection and meeting any requirements under national law shall be deemed sufficient for the purpose of subparagraph (b). Organic Law 6/1985, 1st July, on the Judiciary Art. 7.3: Judges and Courts will protect legitimate rights and interests of individuals and groups to avoid defencelessness of citizens. In order to uphold the rights of groups, associations, entities and bodies which have been affected or are legally authorised to defend and foster such rights may appear before the Courts. Criminal Procedure Code Art. 109 bis 3: Criminal proceedings may also be initiated by associations of victims and by legal persons which the law recognises as having legitimacy to defend victims’ rights, as long as this is authorised by the victim of the offence. International legislation National legislation 9 The defence of supra-individual interests, at least in the procedural field, can be legitimately exercised by associations, corporations or groups representing the community to which the legal interest is linked (e.g. environmental associations, consumer protection associations, etc.).