Criminal defendants -- and victims -- have fundamental human rights that must be respected in any state-sanctioned proceeding. A variety of legal protections have been established over the centuries, but for the most part these anticipate a formal legal process. How can the benefits of informal processes be gained without jeopardizing the human rights of the parties? How can those rights be observed without formalizing the informal restorative processes?
Four particular areas of concern are:
- The right to equal protection of the law. The informality of restorative processes might hide discrimination on the basis of race, gender, ethnic background or other protected status.
- The right to freedom from torture and cruel, inhuman and degrading treatment or punishment. This issue was raised in the early days of restorative justice when the concept of reintegrative shaming was linked with restorative programmes.
- The right to be presumed innocent. Offenders are required to accept responsibility for their conduct as a pre-requisite to a restorative meeting. After all, there is no point meeting with their victim if all they do is deny involvement. So can agreement to participate be used subsequently as evidence of guilt if the meeting fails to result in an agreement.
- The right to assistance of counsel. In many early restorative programmes, attorneys were not allowed to participate in the meetings between victims and offenders. The concern was that the attorney would either speak for the offender or unduly constrain them. Offenders were allowed to consult with counsel before agreeing to participate, however. More recently, some countries have included the attorney in the process as an observer whose role is to ensure that the rights of their client are protected.
Because restorative programmes involve both victims and offenders, the human rights concerns are not limited to the defendant. Depending on national law, the victim may also be entitled to equal protection of the law, assistance of counsel, and other rights.
In 2002, the United Nations endorsed the Declaration of Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. These offer guidance to countries incorporating restorative justice in their criminal justice systems on how to avoid human rights violations such as those mentioned above.