Prospettive di mediazione penale in Italia

Abstract

In our country, like in other ones in the European Union, the issue of restorative justice has recently drawn public attention; it may be defined as the possible solution to a crime that involves the offender and – directly or indirectly – the community and/or the victim, aiming to repair the effects of the offense. Defined as “any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the crime through the help of an impartial third party (mediator)” (Appendix to Recommendation No. R (99) 19 of the Council of Europe), mediation is one of the prime examples of restorative justice. Presently, in the Italian criminal system, despite penal mediation having been addressed to juvenile issues, to offenses prosecutable on the action of the injured party within the competence of the Justice of peace, and recently with the extension of the “probation” system to the adult-justice, considered its features and the guarantees embedded in it, it seems hard to identify a concrete field where to implement mediation for several reasons. In the event that a form of mediation in Italian criminal law were hypothesized, the power to compensate a victim would be no longer assigned to the Judge – who represents the highest expression of guarantee – but to a private citizen who, although impartial, would lack the function of the jurisdiction. Similarly, how to conciliate a form of mediation with the basic principles of the obligatoriness of criminal action (art. 112 Cost) and the presumption of innocence (art. 27 Cost)? In this matter, we must not give up the jurisdiction, nor renounce the mediation, while it could be assumed the strengthening of the first through the implementation of the second. Only the use of qualified personnel in the exercise of judicial functions, to facilitate the creation of controlled paths of dialogue between perpetrators and victims, we could realize the rehabilitative purpose of the punishment that our fundamental Charter designates as its primary goal, without sacrificing the guarantees established by our Constitution and representing unfailing achievements of a legal civilization.