UNILASALLE – Canoas/RS Curso de Direito

From restorative global theories to local
practices: a comparative analysis between the
Portuguese and the Brazilian experiences in
Restorative Justice
Daniel Achutti
Assistant professor
Unilasalle
Brazil
Cristina Oliveira
PhD Candidate
University of Coimbra
Portugal
Leiden, 22 June 2016
SUMMARY
1. Brazilian penal system: current situation
2. Restorative justice in Brazil
3. Previous Brazilian penal reforms
4. Main risks
5. Portugal: preliminary considerations
6. First common findings
1. BRAZILIAN PENAL SYSTEM:
CURRENT SITUATION
Sources: IBGE; CNJ; Infopen/MJ
Sources: IBGE; CNJ; Infopen/MJ
Sources: IBGE; CNJ; Infopen/MJ
75% between 18 and 34 years old
In prison
2/3 are black
68% haven’t finished
elementary school
12% finished
elementary school
Drugs and property crimes: 65%
PERIOD: 1995 - 2014
• Population growth: 30,3%
• Prison population growth: 308,5%
• 1990 to 2015: 575%
DOMICILIAR PRISONS
• 607.731 inmates (299,30 inmates/100.000inh)
• 147.937 inmates in domiciliar prison
• Total = 755.637 inmates
• Inmates/100.000inh = 372,23
LACK OF PLACES
• Occupation rate: 161%
• 231.062 (not including domiciliar inmates)
• 400.000 (including domiciliar inmates)
PREVENTIVE CUSTODY
• Not including domiciliar inmates: 41%
• Including domiciliar inmates: 32%
• 9% reduction
PENAL SYSTEM TARGETS
• Education: incomplete elementary school (basic
education) = 50,5%; complete ES = 13,6%*
• Age: 18 - 24 years (29,8%) and 25 - 29 years (25,3%)*
• Crimes: property crimes (43%) and drug trafficking
(23%)
*Data available in: “Perfil dos Presos no Brasil em 2012”, de autoria de Luiz Flávio Gomes.
Available in: http://atualidadesdodireito.com.br/lfg/2013/08/14/perfil-dos-presos-no-brasil-em-2012
Access in 15/08/2015
2. RESTORATIVE JUSTICE IN BRAZIL
• Informal experiences in Rio de Janeiro’ favelas since 1995
• Originated three pilot-projects (started in 2005), implemented by the
Ministry of Justice for adults (minor crimes) and in the juvenile justice
• Contemporary ‘RJ wave’ for its implementation – central role of the
Judiciary Power
• Recent normative from the National Council of Justice, to spread the use
of RJ in the whole country
• Draft Law n. 7006/2006
3. PREVIOUS PENAL REFORMS IN BRAZIL: LAWS N.
9.099/1995 AND 9.714/1998
1) Prison as last resource, to reduce imprisonment
2) Create a bigger set of alternative measures and sanctions
3) Informality and celerity as main vectors
4) Reduce the impunity feeling
5) Let criminal courts to deal only with severe crimes
6) Create a mechanism for victims reparation through a
conciliatory meeting
DIAGNOSIS
1) No imprisonment reduction and creation of a new
population under penal control via alternative punishment
2) Criminal courts are still full of cases
3) The special criminal courts are full of cases that didn’t
achieved the system before
4) Victims are unsatisfied – conciliatory mechanisms are not
working well
5) Women victims of domestic violence are the most
unsatisfied with penal mediation
Conclusion: the tradition and the culture of the criminal
justice system co-opted the innovative mechanisms
ALTERNATIVE SANCTIONS
Fonte: “Substitutivos Penais na Era do Grande Encarceramento”, de Salo de Carvalho. Disponível em:
http://www.pucrs.br/edipucrs/Crimin.eSist.Jurid.PenaisContemp.II.pdf . Acesso em 15 de agosto de 2015.
People currently under ALTERNATIVE SANCTIONS:
* Dec/2002: 102.403
* Dec/2006: 301.402
* Dec/2009: 671.078
* Dec/2012: 900.000 (approximate number)
Total (approx. n.): 1.655.637
PRELIMINARY CONSIDERATIONS
a) Country size;
b) Lack of reliable data and of research projects;
c) Central role of the Judiciary Power – new normative (NCJ)
made only by judges (legitimacy?);
d) Priority given to the juvenile justice and to minor crimes.
MAIN RISKS FOR RJ IN BRAZIL
• Focused on administrative questions of Judiciary Power, not on
a new conflict resolution system (‘RJ made by and for judges’)
• Centered on the ‘pacification of society’, with no concerns on
victims’ needs
• Considerable chance for net widening and maintenance/growth
of prison population
• No concerns on social exclusion and other big social Brazilian
issues (racism; urban, gender and State violence; etc.)
• Kind of conflicts addressed: mainly minor crimes
• Biggest risk: cooptation by the criminal justice culture
COMMON FINDINGS
Boaventura de Sousa Santos establishes a direct correspondence
between the main characteristics of the dominant juridical and
judicial culture and the legal education, specially those present on
the capacitation of court judges. Santos refers that it is possible to
recognize the domination of:
a) a normativist culture, technical-bureaucratic, under three main
ideas: the autonomy of Law, the idea that the Law is a
phenomenon completely diferent from what happens in society,
and that it is autonomous in relation to such society;
b) a restrictive conception of what is the Law and its
correspondesse to a concrete case; and
c) a bureaucratic or administrative conception of justice.
• According to Santos, such dominant culture has the following
characteristics:
• (a) generalist juridical culture;
• (b) sistemical unaccountability;
• (c) bureaucratic self-isolation;
• (d) society away from the process;
• (e) Independence as self-sufficiency.
Thanks!
daniel.achutti@unilasalle.edu.br
cris.regodeoliveira@gmail.com