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- Title
Justiția restaurativă în România -de la necesitatea implementării unui mod de soluționare alternativă a litigiilor la timiditatea constantă a legiuitorului.
- Authors
NESTOR, Raul Alexandru
- Abstract
If until the adoption of the 1991 Constitution there were several normative acts in force that prevented free access to justice, the entry into force of a new fundamental law led to their repeal, the national legislator sometimes intervening in the absence of an impact study, only in consideration of the need to respect the principles guaranteed at the constitutional level. At this stage of development of national legislation, all those levers and mechanisms were created that allowed any person to go to court, regardless of the nature of the case or the value of the case, the only concern of the legislator being to ensure the free access to a court, regardless of the effects that would subsequently have occurred both at the level of the judiciary and at the level of society as a whole. In 2006, by Law no. 192/2006, the national legislator considered it necessary for the first time after the adoption of the 1991 Constitution, however, to make available to interested parties an alternative dispute resolution mechanism, regulating for the first time the notion and principles of mediation. In those legislative systems that have established an appropriate normative framework, the principles of restorative justice are able to contribute to building a climate of trust and dignity, characterized by avoiding reproach and blame, by accepting the mistakes of the perpetrator as stages of learning and involvement in the process. healing of the perpetrator and the victim, as well as other trusted persons they accept next to them. Such mechanisms address to those societies an advanced degree of civilization, the spirit of these practices being characterized by tolerance, acceptance of the other and the reconstruction and rediscovery of humanity. Although some specialized studies have shown that the imposition of sanctions has a high chance of leading to a high risk of recurrence of illicit behavior and precisely for this reason it is necessary to treat conflict situations differently by alternative methods, the national legislature has not yet given enough credit to forms of alternative justice. We believe that the national legislator should pay more attention to the regulation of restorative practices in the Romanian system, thus conceiving an alternative that has the potential to revitalize the power of those involved in the conflict to find solutions to their needs and decongest the activity of courts. Such a legislative approach would be substantially different from the coercive force used by the state and could be nuanced compared to the classical procedure, helping the aggressor to become more aware of community values and make changes in mentality and behavior, thus avoiding the risk of recurrence. of antisocial behavior. Restorative justice is based on norms and principles anchored in the immediate reality that have the role of ensuring adequate treatment of both the accused and the injured through criminal activity, the main purpose being to include the community in this process. Alternative justice presupposes as essential grounds: reparation, responsibility, volunteering, community spirit, redress and early prevention. By committing the crime, damage is caused both to the victims (individual or collective) and they will be at the center of finding reparative solutions, as well as to the community as a whole, which is put in a position to look for an adequate behavioral compliance mechanism. The professional mediator should be the holder of a multidisciplinary professional training, knowledge of the regulatory framework being essential for the exercise of the profession in full compliance with the law and not to generate causes for which a possible mediation agreement is subsequently devoid of any effects. The conduct of the restorative justice act by a professional is the main guarantee of a lasting solution to the conflict, a notion that will include both the explanation accepted by all parties to the prohibited act of conduct and the prevention of a recurrence of the same behavior in the community. In accordance with the definition in the preamble to the Annex to the UN Resolution no. 2002/12: „Restorative justice is a response to crime that respects the dignity and equality of every person, which builds understanding and promotes social harmony, by healing the victim, the offender and the community".
- Subjects
UNITED Nations; DISPUTE resolution; COMPLIANT behavior; RESTORATIVE justice; MEDIATION; DELINQUENT behavior; LEGAL compliance
- Publication
Pandectele Române, 2022, Issue 2, p34
- ISSN
1582-4756
- Publication type
Article