Conceptualising and assessing a human right to access restorative justice in European criminal law

Abstract

Restorative justice is a process, provided for in European criminal law, in which dialogue is facilitated between those affected by crime and those responsible for that crime. While the European Union and Council of Europe’s legal frameworks incorporate rights that relate to restorative justice, there has been very little academic or political consideration of the possibility that access to restorative justice should be a human right in itself. This article draws on conceptual frameworks outlining criteria by which a proposal for a new human right may be assessed, to consider whether restorative justice can rightfully be welcomed into the human rights family. We analyse relevant challenges and complexities inherent in restorative justice to conceptualise it as a human right, before using work by Susi, Alston and others to consider whether restorative justice meets the qualitative criteria for a human right, whether it can be said to derive from existing human rights, and how it can be conceptualised in a sufficiently universal and abstract way to be incorporated into European criminal law as a human right.