07 dezembro, 2007

legitimar a justiça restaurativa

I. Preâmbulo

“It was a dry winter evening in January 2000. R., a young fighter pilot in the Israeli Air Force, was driving his car way home to one of the suburbs of Tel Aviv.
Despite rush hour, traffic was moving smoothly, and R. was in no hurry. Suddenly the brake lights of the car in front of him came on and the car quickly came to a full stop. R. hit the brakes and tried to steer the car aside to avoid colliding with the car in front of him. He was unable to stop and the passenger sitting in the back seat of the car in front of him was killed instantly. The deceased was a mother on the way to her son’s wedding. The driver of the car was her daughter.
The police investigation determined that the car driving in front of R. slowed down and stopped due to heavy traffic and that the situation involved no unusual circumstances. If R. had paid more attention to the road ahead of him, he would have likely noticed the traffic delay and taken the necessary measures to avoid the accident. His negligence resulted in a fatal car crash.
The evidence of his negligence precluded any course of action other than to charge R. with negligent homicide, an offense for which the maximum punishment is three years imprisonment. In the arraignment hearing, R. entered a “not guilty” plea, which launched a long and intense trial. After nearly two years, R. was convicted as charged, but due to his impeccable record, his duties and contribution to society, and the circumstances of the accident, he was sentenced to six months of community service in an old age home and precluded from holding a driver’s license for a few years. For the prosecutor, defense attorney and judge who tried the case, there was nothing special about it. It was one of many fatal car accident cases which they were accustomed to handling. The outcome of the trial was determined by professionals, dealing with complex questions of substantive criminal law, evidentiary rules and procedure.1 The final sentence—well within the common range of sentencing for these types of cases—was anticipated from the start.
Ironically, even though the trial was controlled entirely by professionals, it was certainly not about them. It was the bereaved family, the deceased’s friends and neighbors, R., and his family and close friends that were affected by the fatal accident. It was their lives that changed after the accident. Therefore, the question should be: ‘How did the trial affect them?’ The short answer is “not well.” At the end of the trial, the bereaved family was devastated. They did not understand why the trial took so long and could not accept its outcome. They were personally hurt by the fact the young pilot did not assume responsibility immediately and lost all respect for the justice system that accepted this behavior. After close to two years of legal proceedings, the bereaved family and friends felt victimized again, this time by the justice system. Interestingly, R.’s reaction to his trial was probably not very different. As he clearly articulated in his confident testimony in court, he truly did not feel responsible for the accident. It is unlikely that he changed his mind after the conviction and probably perceived his conviction to be unjust.
Although the facts of this case occurred in Israel and were tried according to Israeli law, it is representative of the methods employed by most common law criminal justice systems as their primary response to crime. However, this method suffers from three basic deficiencies, illustrated in this case: (1) the lack of a meaningful role for crime victims, (2) inefficiency and ineffectiveness, and (3) inability to be perceived as just and fair. After two years of legal proceedings, the decedent’s family was victimized again by the justice system, the offender did not learn anything he did not already know before the trial began, and both sides felt they were treated unjustly.”

excerto do artigo "Legitimar a justiça restaurativa - uma justificação teórica para o uso de práticas restaurativas" de Zvi D. Gabbay retirado de Real Justice, International Institute dor Restaurative Practise.

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