Keys to positive regulation of Restorative Justice in Spain: Questions to be answered by the legislator

Abstract

Today, Restorative Justice has wide international recognition, both in universal international law and in European regional law. However, and despite the tendency of countries around us that have legislated on it, the reality is that in Spain there are only a few normative references to Restorative Justice or criminal mediation, with no express regulation on the matter. Faced with the regulatory proposals to modify the Criminal Procedure Law made in 2011 and 2013 or in the current Draft Law to reform said Law of November 2020, which expressly refers to it, the truth is that the line is not followed of the 2018 Recommendation and is not regulated exhaustively, incorporating it in a real and effective way into our internal legal system. This paper aims to offer a proposal for regulation on the matter, taking into account the theoretical-practical experience accumulated by Spanish facilitators in restorative justice and intrajudicial criminal mediation in different pilot projects promoted by the General Council of the Judiciary, in Tribunals or Courts throughout the national territory, and thanks to the initiative of some Autonomous Community such as the Basque Country, where restorative justice is a reality materialized through the Restorative Justice Services.