ELECTIVE - RESTORATIVE JUSTICE

1. COMPARATIVE TABLE OF THE THREE RESTORATIVE JUSTICE

MECHANISMS CONTEMPLATED IN THE COLOMBIAN CODE OF CRIMINAL
PROCEDURE

Comprehensive
Pre-procedural
Mediation Repair Incident
conciliation
Reconciliation
Seeking that two or Facilitate the Seek
more people exchange of opinions comprehensive
manage by between the victim reparation to the
themselves the and the accused, so victim for the
solution to their that they can confront damages caused
PURPOSE

differences with the their points of view by the crime

help of a neutral and and, with the help of a committed against
qualified third party. third party designated them.
by the Attorney
General of the Nation,
manage to resolve
the conflict that
confronts them.
Complaintable Crimes prosecutable All types of
crimes, that is, those unofficially. punishable crimes
TYPE OF CRIME

for which it is up to in which

the victim to request recognition of
that the State criminal
conduct a criminal responsibility has
investigation and been made.
sanction the
perpetrator of the
conduct.
Prior to the formal From the Formulation Until 30 days after
PROCEDUR

MOMENTS

initiation of the of the Allegation of the ruling of

process. Charges and until recognition of
AL

before the oral trial. criminal

responsibility has
been issued.
PROCEDURE  Request for  Request filed by  Request filed
conciliation the victim, the by the victim
hearing. accused or the directly or
 Summons to the accused. through his or
conciliation  Designation of the her lawyer. If
hearing. mediator by the the victim
 Conducting the Attorney General does not do
conciliation of the Nation or so, the
hearing. his delegate. Prosecutor or
 Results of the  Carrying out the Public
conciliation mediation. Ministry may
hearing.  Sending the do so, if
 Registration of report of the deemed
the Minutes of results of the appropriate.
total or partial mediation to the  Study of the
agreement for prosecutor or request,

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transition to res judge, as the case adjusted to

judicata or of the may be. the legal
records of Non-  Assessment of framework
agreement, non- the results of and reasoned,
attendance or mediation for the by the judge.
non-reconcilable exercise of  Admission, if
matter. criminal action; applicable, of
the type of the request by
security measure the hearing
to be imposed judge.
and the  Information to
individualization of the person
the penalty. declared
criminally
responsible
about the
admission of
the request for
reparation and
the offer of the
conciliation
mechanism.
 Conducting
the
conciliation
hearing. If
there is an
agreement, it
is
incorporated
into the
sentence,
otherwise a
new hearing is
scheduled.
 Carrying out
the second
conciliation
hearing, if
there is no
agreement,
the person
declared
criminally
responsible
must offer
their own
means of
proof.

Comprehensive
Pre-procedural
Mediation Repair Incident
conciliation
Reconciliation

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 The  The prosecutor The judge with

corresponding  The guarantee knowledge

LEGALLY ENABLED
prosecutor in the control judge. functions who has
User Service  The judge of announced the
INSTANCES
Room of the knowledge. meaning of the
Prosecutor's ruling with
Office. criminal
 A Conciliation responsibility.
Center.
 A conciliator
recognized as
such.

2. APPLICATION OF RESTORATIVE JUSTICE IN CASE OF VIOLATION OF

HUMAN RIGHTS AND INFRINGEMENT OF INTERNATIONAL HUMANITARIAN
LAW.

The Colombian Political Constitution has as its pillar the respect and protection of
human rights. However, the predominant retributive justice paradigm in our country is
not the form of administration of justice capable of contributing to the protection and
respect established in the Charter. On the one hand, the victims of serious violations of
their fundamental rights have historically been made invisible and it is only with the
adoption of restorative justice mechanisms in Law 906 of 2004, that they are
recognized as subjects of human rights and the State begins to timidly take some
measures in search of its comprehensive repair. On the other hand, the prison system
faces a deep crisis, corruption corrodes its core, overcrowding violates the human
dignity of prisoners, their reintegration into civil society is impossible, prison is a
specialized school of crime that reproduces and enhances the thirst for revenge. This
leads us to propose that justice must be rethought and move towards alternative
models that are pillars of containment of the flagrant violation of human rights
prevailing in the country.

However, some scholars of the subject point out that in Colombia the restorative justice
mechanisms are not achieving their goal; A high percentage of the agreed agreements
are not fulfilled, the non-repetition of the criminal conduct by the perpetrator is
fallacious and consequently impunity, one of the most serious problems of criminal
justice, continues to follow the new path. So we ask ourselves, if restorative justice
mechanisms do not work, for cases whose scope is very limited, can we hope that they
will do so in the face of the protection of human rights?

In principle the answer to the question posed is no. No, as long as restorative justice is
conceived as simple appendix mechanisms of the adversarial criminal system and is
stripped of its philosophical dimension. But the answer could be yes, if broad social
sectors can conceive it as a philosophy of life, which ultimately seeks the
transformation of the structural and cultural causes that underlie crime. If it is possible
to empower a new concept of justice, whose foundation is not punishment and
revenge, if progress is made towards the understanding that both the victims and the
perpetrators are subjects of human rights, if it achieves that the victims are made
visible and comprehensively repaired and that the community is an active actor in
dispensing justice, an important turn will have been taken in the achievement of one of
the greatest aspirations of humanity, which is the defense of human rights.

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On the other hand, in the application of restorative justice mechanisms, working on its
psychosocial dimension is essential to achieve the purposes pursued. Without
adequate understanding and treatment of the suffering of victims and perpetrators
caused by the atrocities of crime and without the active participation of the affected
community, it is not possible for victims to be empowered in the process and for
perpetrators to truly assume responsibility. of actions. Thus the past cannot be left
behind, the criminal conduct will be repeated and the agreements will be written in the
conciliation minutes. Is the adversarial criminal system prepared to address this
dimension?

The armed conflict that the country is experiencing has left chilling figures on human
rights violations throughout the country, accompanied by serious violations of
international humanitarian law. International Humanitarian Law, whose essential
purpose is to mitigate for humanitarian reasons the effects of both internal and external
armed conflicts, is a valuable instrument for the protection of the civilian population
outside the conflict, however it does not have sufficient force to prevent abuses of
wars, interference by stronger countries in weaker ones, attacks on the civilian
population, mistreatment and torture of prisoners of war; It is enough to look at Iraq,
Libya, the Guantánamo prison, the minefields, the car bombs, the assaults with
cylinders on the small towns of our country, to conclude that the violation of IHL It
comes not only from irregular groups but also from state ones.

However, the Inter-American Court of Human Rights, like other regional restorative
justice systems, play an important role in protecting the rights enshrined in International
Humanitarian Law. States and governments must respond when, through their actions
or negligence, they have violated or have not been able to stop violations of IHL. There
are several cases in which the Inter-American Court has condemned Colombia to
compensate the victims. Examples include the case of the Naya massacre; the murder
of the senator of the Patriotic Union Manuel Cepeda Vargas, among others.

Since peace is an essential value consecrated as a duty and right, it is imperative to

look for the keys that allow it to acclimatize; One of them is restorative justice, as noted
by the Nobel Peace Prize winner, South African Archbishop Desmond Tutu, in the
seminar held in Cali in 2006. “Restorative justice seeks, as its name indicates, to
restore individual and community relationships that are broken as a result of violence,
create bridges, rebuild lost balances and restore fractured relationships”, words that
invite us to look towards South Africa that achieved peaceful transition from a regime
as opprobrious as Apartheid to a democratic one, after years of intense violent
struggles. Why then not rely on Restorative Justice to resolve our internal conflict? As
Antonio Russo clearly states, cited by Pulido (2007): “there is in man the wonderful
tendency to put wings on life, even when the result does not manage to surpass the
heavy flight of the goose.” If restorative justice is made a philosophy of life, lasting
peace will also be achieved.

REFERENCES .

Ministry of the Interior and Justice, National University of Colombia (2007). Institutional
Guide to Criminal Conciliation. Downloaded on March 20, 2011 from
http://www.conciliacion.gov.co/archivos/documentos/Publicaciones/Guia
%20Conciliaci%C3%B3n%20en%20PENAL.pdf

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Mountain, E. National Regulations . Work document . Cali: Pontifical Javeriana

University.

Parra, Adela. International Regulations . Work document . Cali: Pontifical Javeriana

University.

Pulido, A. (2007). Possession work as corresponding member. Colombian Academy of

Jurisprudence. Downloaded March 20, 2011 from
http://www.acj.org.co/activity_academica/posesion_pulido_pineda.htm

Vasquez, R. (2009). Advantages and difficulties of alternative conflict resolution

mechanisms in the Accusatory Criminal System in Barranquilla. Justicia Juris,
6(11), 105-117. Downloaded March 18, 2011
http://www.uac.edu.co/images/stories/publicaciones/revistas_cientificas/juris/
volumen-6-no-11/art-9.pdf