Disinterest of the victim does not stop restorative justice

Access to a restorative justice programme cannot be denied because the victim declares himself not interested or even because there has been no compensation. This was clarified by the Court of Cassation with sentence 8653 of the Third Criminal Section, which annulled the judgement of the Gup that had prevented a man convicted of acts of sexual violence against a minor from participating in a restorative justice programme. The expression of declared disinterest on the part of the victim's parents was decisive.

For the Supreme Court, however, restorative justice, which was introduced and regulated in a timely manner for the first time in our legal system by the Cartabia reform of the criminal justice process, is not concerned with the punishment of the offender, but rather with his responsibility, promoting the reworking of the conflict and the reasons that led to its occurrence.

The aim, therefore, is to make the individual predicate offender grow in a concept of responsibility towards the victim and to make them feel the need to repair the offence caused. "In this perspective," the Court of Cassation emphasises, "the restorative justice system can be declined not as an instrument at the exclusive service of the victims, but of all the protagonists of the conflict originated by the 'fact' for which it is proceeding, who are put on the same level". An interpretative key that the sentence highlights as also very distant from the logic of economic transaction of conflicts.

The Court then also finds in the content of restorative justice programmes an element supporting the thesis that admits to the pathway even in the presence of an explicit disagreement on the part of the victim. In the regulation, in fact, in addition to programmes that seethe necessary participation of the victim, there is a reference to 'any other dialogue programme led by mediators'. The legislator therefore stipulates that mediation may also take place with 'surrogate or non-specific victims', i.e. with 'victims of offences other than the offence for which they are being prosecuted', to prevent the offender from being deprived of useful tools for social reintegration, just because he/she has not met a victim who is ready for dialogue.

If anything, the judicial authority has the task of verifying the absence of the two obstructive elements identified by the law: interference with the ascertainment of the fact and danger to the safety of the accused or the victim, when there is a high level of conflict between the two.