Winners of the FLAC x Eagle Essay Competition on “Restoration: Rethinking Crime, Punishment, and Justice”
Epistemic restoration and restorative justice: The decolonial case for prison abolition in Ireland
R v Brown agus an cur chuige Catagóireach: Réasúnaíocht Mhorálta, Claonadh Breithíunach, agus an Gá le Coras Nua
Rethinking Carceral Responses to Gender-Based Violence Against Indigenous Women in Australia
Sarah Gonnord
Restorative Justice as Remedy for Systemic Harms
Eve O’Callaghan
Epistemic restoration and restorative justice: The decolonial case for prison abolition in Ireland
David Wolfe
When Theory Meets Reality: Restorative Justice in Ireland and Beyond
Stefana Maganu
The Architecture of Healing: Restorative Justice as Democratic Imperative By Eliza
Heaslip
and
Media, Democracy and the Rule of Law: Is There Any Hope Left for Slovakia? Marta Balazova
Environmental Restorative Justice: Re-Thinking Ireland’s Approach to Environmental Damage
Cian Goulding
R v Brown agus an cur chuige Catagóireach: Réasúnaíocht Mhorálta,
Welcome to The Eagle Gazette's second issue of Volume 12, and our final publication of the 2025/26 academic year.
Since its founding, The Eagle has been guided by a simple mission: to make legal and political writing accessible, engaging, and student-driven As each year passes, we remain proud of the Gazette's place within Trinity's academic and social life, as both a forum for ideas and a record of the concerns that shape each generation of students.
This issue is anchored by the results of our essay competition, run this year in partnership with FLAC The prompt, "Restoration: Rethinking Crime, Punishment, and Justice," invited students to engage with some of the most fundamental questions in criminal justice. The response was outstanding, and the range of submissions reflects the depth of thinking across the student body
We are delighted to publish the winning essay by Sarah Gonnord, whose piece on carceral responses to gender-based violence against Indigenous women in Australia offers a powerful critique of how punitive frameworks fail those they claim to protect The runner-up piece by Eve O'Callaghan examines restorative justice as a remedy for systemic harms through the lens of the Magdalene Laundries, grounding her argument in the communitarian character of the Irish constitution.
Beyond the competition winners, this issue features a rich collection of additional submissions and general articles. David Wolfe draws on decolonial theory to make the case for prison abolition in Ireland. Stefana Maganu offers a comparative perspective on restorative justice in practice, while Eliza Heaslip frames restoration as a democratic imperative Hosei Kishida provides a comparative analysis of China's confession-leniency system, and Niko Carter examines restorative justice at the International Criminal Court. Ciara Mangan Lynch interrogates the continued criminalisation of bigamy in modern Ireland, Marta Balazova explores the deterioration of media freedom in Slovakia, and Cian Goulding makes the case for environmental restorative justice Henry McNamee's article, written as Gaeilge, critiques the category-based approach to consent in assault following R v Brown, arguing that the reasoning is rooted in moral judgment and judicial bias and that a reformed system is needed.
I extend my sincere thanks to our sponsor, Maples Group, for their continued support I am deeply grateful to our Deputy Editor Jessica Jiang, Copy Editor Nóra Collins, and Public Relations Officer Danielle Power for their hard work throughout the year My thanks also go to our Junior Editorial Board, whose dedication makes every issue possible
Thank you to all our writers, editors, supporters, and readers for contributing to another year of student-led analysis. It has been a privilege to serve as Editor-in-Chief for Volume 12, and I hope this final issue encourages reflection, debate, and curiosity as we close out the year.
David O’Sullivan Editor-in-Chief
Senior Editorial Board
Editor in Chief: David O’Sullivan
Deputy Editor: Jessica Jiang
Copy Editor: Nóra Collins
Public Relations Officer: Danielle Power
Junior Editorial Board
• Gareth McCrystal
• Isobel McSorley
• John Lonergan
• Danielle Briody
• Winta Solomon
• Ayda Ozbay
• Orla Bates
• Leah Bernasconi
• Keelin Walshe
• Joshua Griffin
• Ruairí Bates
• Ruairi Holohan
• Sophie Eastwood
• Angele Rogez
• James De Barra
• Cian Goulding
• Raina Bosniac
• Odhrán Lagan
• Henry McNamee
• Síofra O’Donoghue
• Ainsley Hamilton
• Clodagh McGlynn
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“Restoration: Rethinking Crime, Punishment, and Justice”
Rethinking Carceral Responses to Gender-Based Violence Against Indigenous Women in Australia
by Sarah Gonnord
Carceral feminism is a discourse that currently dominates mainstream approaches to addressing gender-based violence in Australia. It promotes statecontrolled, punitive, and criminal justice-oriented responses, informing policy proposals such as the establishment of women’s police stations and the criminalisation of coercive control. This essay argues that the current carceral feminist framework fails to adequately protect Australian Aboriginal and Torres Strait Islander (Indigenous) women and instead exacerbates their over-representation as victims of gender-based violence This failure stems from carceral feminism’s assumption of a universal experience of gender oppression, which ignores how the intersection of factors such as race, gender, and colonialism creates unique experiences for Indigenous women within the criminal justice system. Firstly, this essay critiques the theoretical and practical limitations of the current carceral feminist approach, demonstrating how it perpetuates harm towards Indigenous women. Secondly, this essay proposes alternative, decarceral solutions, such as the establishment of Indigenous community-led programs, which effectively address gender-based violence against Indigenous women
II. Problems with the Current Carceral Feminist Approach to Gender-Based Violence
The current carceral feminist framework employed to respond to gender-based violence in Australia is flawed because it universalises women’s experiences of gender oppression, thereby marginalising Indigenous women and prioritising the interests of white, middle-class women. By focusing on the expansion of police powers and strengthening
punitive measures, this approach disregards how the intersection of gender and race creates distinct encounters with the criminal justice system. For instance, police institutions have historically functioned as instruments of racial oppression against Indigenous people. Their complicity in colonial violence has produced deep mistrust and fear amongst Indigenous communities. However, the majority of Indigenous women subjected to gender-based violence are often forced to engage with the police because culturally safe alternatives remain underfunded and inaccessible
Carceral feminism’s reliance on policing disregards the structural and institutionally ingrained apathy that police tend to have towards Indigenous women. For example, a study revealed that in almost one-fifth of domestic violence callouts involving Indigenous women, police never attended the scene Police also frequently misidentify Indigenous women as perpetrators. Buxton-Namisnyk highlights that in nearly a third of domestic-violence incidents included in a study, victims were wrongly classified as offenders These misidentifications often stem from failures to contextualise women’s defensive actions or to situate conflicts within histories of abuse. Additionally, in 22% of the cases, police criminalised Indigenous women for unrelated offences, such as drunkenness, during domestic violence investigations
The failures of carceral feminism also extend to its broader policy assumptions Current feminist legal reforms, such as the criminalisation of coercive control, have largely excluded Indigenous women’s perspectives and concerns from their design. Indigenous scholars, such as Professor Hannah McGlade, warned that such laws do not address the over-policing of Indigenous women and may deter them from reporting gender-based violence to the criminal justice system. Despite these concerns, New South Wales became the first State to enact a standalone coercive control offence.
Consequently, the benefits of carceral feminism do not extend equally to Indigenous women because their unique needs have not been anticipated. Thus, Indigenous women remain disproportionately affected by gender-based violence: for instance, they are 27 times more likely than other Australian females to be hospitalised due to family violence.
Given this reality, academics argue that there is an ethical imperative not to advocate for feminist carceral responses to gender-based violence. Initiatives such as the criminalisation of coercive control and the establishment of women police stations rest on the false assumption that the criminal justice system is a neutral protector rather than a site of racialised violence
III. Alternative Solutions to Gender-Based Violence Against Indigenous Women
Some survivors of gender-based violence, including Indigenous women, view criminal legal responses as necessary for ensuring the accountability of perpetrators and protection of victims. Thus, this essay does not advocate for the decriminalisation of gender-based violence. Rather, it argues that Indigenous women should have the option to choose from a range of justice pathways, from engaging with the criminal justice system to accessing Indigenousled, community-controlled alternatives that reflect their specific needs and values.
To achieve this, separate political strategies and legal frameworks must be developed to recognise and accommodate the distinct experiences of Indigenous
women The Our Ways –Strong Ways – Our Voices: National Aboriginal and Torres Strait Islander Plan to End Family, Domestic and Sexual Violence 2026–2036 was recently developed by the Australian government in partnership with Aboriginal and Torres Strait Islander people. It is backed by $218.3 million in new funding over four years which will invest in a national network of up to 40 Aboriginal Community Controlled Organisations (ACCOs) to deliver community-led specialist support services to Indigenous victims of gender-based violence. This is a positive step forward as the establishment and expansion of ACCOs has been recommended as a culturally grounded mechanism for responding to gender-based violence However, for ACCOs to be effective in providing trauma-informed, holistic support to survivors, their operation must be grounded in the principles of self-determination and community ownership. Crucially, Indigenous communities must retain control over their design, governance, and implementation, ensuring that responses are not imposed through bureaucratic, nonIndigenous agencies.
In addition to expanding ACCOs, reform must occur within the criminal justice system itself. For instance, the Australian Law Reform Commission recommends that police forces and judicial officers receive mandatory human rights, trauma-informed, cultural and gender-responsive training Such training will improve institutional responses to gender-based violence against Indigenous women, reduce misidentification and discrimination, and address the ongoing harms of systemic bias.
Currently, the lack of political and financial investment in non-carceral responses to gender-based violence is forcing Indigenous women to depend on state-controlled systems Despite consistent research affirming their success, Indigenous community-based programs are often limited to short-term pilot schemes Long-term investment in these services would expand survivors’ options and break cycles of dependency on punitive state interventions Justice Reinvestment (JR) provides a promising way to achieve this. JR is based on the premise that the most effective way to combat gender-based violence is by addressing the underlying cause of these crimes
n communities Thus, it advocates for the redirection of funds from punitive institutions to communitybased prevention The total justice system costs of Aboriginal and Torres Strait Islander incarceration in 2016 were estimated at $3.9 billion. In addition to its impact on families and communities, gender-based violence carries many costs associated with the provision of health services, emergency refuge accommodation, police services, and care facilities. JR would lead to the creation of a group of tailored strategies, programs, and policies that redirect these costs to introduce initiatives at a community level which focus on the early intervention and prevention of gender-based violence, creating healthier communities for survivors, and can also be used to fund services for victims Funds typically spent on the incarceration of perpetrators of gender-based violence could be reinvested into a range of culturally appropriate, community-owned programs such as support services run by ACCOs for survivors, community education and awareness campaigns, men’s healing and accountability programs, alcohol and drug rehabilitation initiatives, trauma counselling, and parenting and relationship workshops. These funds would respond to the factors at play in the community that contribute to wider socio-economic drivers of gender-based violence A successful example of such a model is the Maranga Justice Reinvestment Project in Bourke, NSW
IV. Addressing Concerns About Decarceral Approaches
The expressed concerns that moving away from a feminist carceral response to gender-based violence could lead to undue leniency, and even acceptance of such violence, overlook the fact that the current carceral system already treats violence against Indigenous women leniently through systemic neglect, disbelief, and criminalisation of survivors Furthermore, the key drivers of Indigenous overrepresentation in the criminal justice system, including socio-economic disadvantage, drug and alcohol misuse and the ongoing impacts of colonisation, cannot be resolved through incarceration because detainees often suffer psychological harm when removed from familial, communal, and cultural support systems. In contrast, community-led, decarceral models directly target these factors, offering a more sustainable way to reduce rates of gender-based violence in the long-term.
V. Conclusion
Overall, the ‘one-size-fits-all’ model of carceral feminism fails to protect Indigenous women from gender-based violence. It fails to acknowledge that Indigenous women are subject to differential treatment within the criminal justice system compared to white women; in particular, they face systemic bias within policing and are largely excluded from feminist policy-making. Decarceral, communitybased responses such as the establishment of ACCOs offer a more effective and just alternative for Indigenous women survivors Training for police and judicial officers can combat institutional bias and improve the responsiveness of the criminal justice system to Indigenous women A Justice Reinvestment approach can ensure the sustainable and long-term funding of community designed programs which respond to and reduce rates of gender-based violence. Ultimately, achieving justice for Indigenous women who are survivors of gender-based violence requires a move away from carceral feminist frameworks and towards models that centre on Indigenous selfdetermination, voice and community strength.
Restorative Justice as Remedy for Systemic Harms
by Eve O’Callaghan
“Modern criminal justice systems are founded on individualised notions of moral and legal culpability, thus rendering them appropriate for addressing discrete offences which encompass actus reus and mens rea, but unsuited for responding to more complex institutional harms. Established at a time when the central dynamic at stake was thought to be the relationship between the accused and the state, the criminal law, as it stands, is incapable of achieving justice for groups victimised by the state itself Through the lens of the Magdalene Laundries, this essay argues that restorative justice principles are not only appropriate, but necessary for meaningful accountability and justice in cases of structural violence, while recognising the limitations of Ireland’s partial adoption of such approaches. Ultimately, it argues that the Irish constitution’s communitarian character allows for such an approach to vindicating the rights of victims and communities.
Zehr defines restorative justice as ‘a process to involve, to the extent possible, those who have a stake in a specific offence to collectively identify and address harms, needs, and obligations in order to heal and put things as right as possible’ While criminal justice operates on the basis of guilt as an essential feature, restorative justice sees offences as violations of our obligations towards people and society. Ultimately, this interpretation of wrongdoing emphasises broken relationships as both cause and effect of wrongdoing, and focuses on healing for all those involved. Significantly, restorative justice need not replace the traditional legal system, but rather can act as a corrective mechanism to the rigidity of traditional criminal law, elevating the interpersonal dimensions of crime A key example Zehr gives of
trestorative justice as a response to systemic injustices is the Truth and Reconciliation Commission in South Africa. Pranis refers to this Commission as a form of participatory democracy that moves beyond simple majority rule; thus reflecting a ‘thick’ definition of democracy which seeks deliberation and consensus.
These ideas are revelatory when it comes to Ireland’s experience of Church/State abuses: restorative justice is appropriate not merely as a mechanism for punishing past crimes, but as a means of collective learning, allowing deliberation by the people to shape the country we live in.
The institutional abuses which occurred at the Magdalene Laundries resist conventional criminal prosecution for a number of reasons: evidentiary issues, state-church endogeneity which complicate blameworthiness, and the time lapse between offence and remedy Aragon and Jaggar note that structural injustices ‘are not reducible to the conduct of individual agents, nor do they result from intentional institutional planning’. Rather, an overlapping and diffuse collection of actions and omissions emerge to form tragic outcomes. While both institutional and individual failures are undoubtedly present in the case of the Magdalene Laundries, the fact remains that any attempt to address these injustices through traditional means will come up empty. We must see past the understandable instinctive desire to ‘punish’ these horrific acts and recognise that, to do right by the victims, a restorative and comprehensive approach is required, bolstered by an understanding of structural factors that work alongside individual blameworthiness
A final problem which prevents the Magdalene Laundries from being addressed through traditional criminal law is the complex question of complicity. Aragon and Jaggar write that people are structurally complicit when they ‘exercise their agency in ways that reinforce the unjust social structures in which they participate, regardless of their conscious intentions’. When social structures themselves are unjust, they argue, individuals are encouraged to reenact these injustices and act in conformity. Without the wilful ignorance of society as a whole, the necessary conditions for the Laundries to exist and flourish would be absent Yet, does this mean these people deserve some form of punishment? In my view, this cannot be the case Cultural pressure and religious intimidation cannot be ignored as factors in the complicity of the Irish people in the Laundries
Therefore, the government has moved towards nonpunitive responses such as apologies, redress schemes, and memorialisation at the sites of abuse. While this is an appropriate recognition of the structural incapability of punitive justice to deliver justice in this case, and a welcome embrace of restorative principles, it has ultimately fallen short of the true purpose of restorative justice. This, in my view, is due to a lack of recognition of the Magdalene Laundries as a constitutional failure, not merely a moral one Article 40 3 of the Constitution reads:
1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
As O’Rourke points out, the Irish constitution does not contain explicit rights against slavery or forced labour, but the personal rights provisions on Article 40 3 likely implicitly cover such violations 40.3.2 obliges the state to protect and vindicate the express right of the citizen to her person, yet jurisprudence seldom invokes this provision as a standalone justification for redress. As O’Rourke goes on to write, the Slavery Convention 1926, created under the auspices of the League of Nations, defines slavery as the ‘status or condition of person over whom any or
all of the powers attaching to right of ownership are exercised’ O’Rourke argues that implicit in the right to one’s person, as protected by the constitution, is the right not to be ‘owned’ by another Under this interpretation, the Magdalene Laundries represent a constitutional failure which ought to be remedied by restorative justice principles. The women and children who suffered in the Magdalene Laundries were victims of an overly permissive attitude of the Irish state towards the Catholic Church, notably by exempting the Laundries from any system of official regulation and inspection, as O’Rourke notes. The state must, along with its people, learn from these historical failures, ensuring that such suffering is never again left unchecked and even encouraged by the state
Justice in the Irish context, I argue, is never wholly individualistic, even if the traditional criminal process has become so. Restorative modes of redress are not external ideals, but rather a recognition of Ireland’s constitutional impetus towards collective justice, and part of our collective learning as a society. The constitution rejects atomistic individualism and allows for a balancing between social order and individualism, conceptualising justice in relational terms Preambular invocation of dignity, freedom, and the common good equally allow restorative justice to be seen, not merely as a policy choice, but as a constitutional corrective, following decades of dilatoriness by the state McCrudden sees the inclusion of ‘dignity’ in the Irish constitution as a tentative step towards a universalistic human rights ethic that was deliberately left ‘open-textured’ so as to be capable of future interpretation. Murphy furthermore, argues that consent of the governed in the Irish context derives legitimating power from the concept of dignity in the constitution.
Pettitt lends nuance to this constitutional conversation through arguing that Ireland’s constitutional identity can be understood through a republican, rather than just a liberal, lens This quality requires dispersed power and active citizenship, protected by Article 6, which states that the power to govern derives from the people, reflecting republican rather than liberalindividualist foundations. Balkin’s concept of ‘framework originalism’ argues that the Constitution establishes abstract principles like dignity whose application evolves with the social context, allowing for this republican understanding to develop in line
with social consensus Therefore, the constitution’s dignified parts allow us to apply them to modern tragedies like the Magdalene Laundries. Structural injustices risk being overlooked if these aspects of the constitution are treated as decoration rather than deep and consequential constitutional values.
Thus, while restorative justice is not, in my view, universally superior, it is necessary as a corrective where traditional punishment measures fail The response to the Magdalene Laundries attempted an embrace of restorative justice, but took an overly narrow approach Limited dialogue and constrained institutional accountability meant the attempt was an ad hoc moral response rather than a constitutionally grounded form of justice. This, however, offers important collective learning opportunities for future attempts to restore justice following systemic harm. Kelly writes that the Irish constitution functions as both law and manifesto. It is justiciable law, not political convention, yet the legal system often neglects to apply it to unconventional circumstances. Ireland’s communitarian and republican constitutional identity must be remembered in our attempts to rectify Church/State institutional abuses, bringing human dignity to the fore
Epistemic restoration and restorative justice: The decolonial case for prison abolition in Ireland
by David Wolfe
No comparable jurisdiction has ever succeeded in building its way out of overcrowding
– Mark Kelly, Chief Inspector of Prisons, 8 January 2026
So comrades, let us not pay tribute to Europe by creating states, institutions, and societies that draw their inspiration from it.
– Frantz Fanon, The Wretched of the Earth, 1963
Introduction
When it comes to criminal justice, the Irish political imagination is perpetually narrow Though its native history offers a radical example of restorative law practices, punishment, particularly in the form of incarceration, remains the central object of the Irish justice system. Prisons play such a primary role in criminal proceedings that most hardly question their ubiquity, even less aspire to a world without them entirely. Nevertheless, Ireland was once such a world – and, with the political will for a radical rethinking of justice, could even be again
The contention of this paper is that the marginalisation of non-carceral approaches to justice is indicative of an unfinished process of decolonisation in Irish society Over a century after independence, penal policy (to take just one example) continues to operate under the institutional logic of colonial administration, including the primacy of incarceration as a tool of social control. The absence of sustained political engagement with decarceration strategies should be understood as indicative of an incomplete process of decolonisation. In this context, the development of decarceration approaches, with
prison abolition at the radical end, necessitates a parallel project of epistemic transformation capable of unsettling inherited assumptions about criminal justice.
This paper uses Aníbal Quijano’s concept of ‘coloniality’ as a framework for understanding the intellectual limits of policymaking in Ireland. Decolonial perspectives, including indigenous justice traditions, open conceptual space for restorative and abolitionist approaches The development of decarceration approaches, with prison abolition at the radical end, necessitates a parallel project of epistemic transformation capable of unsettling inherited assumptions about criminal justice.
The failure of prison policy in Ireland
Current prison conditions in Ireland are failing to meet basic human rights standards. In January, Ireland’s Chief Inspector of Prisons described current conditions as “inhuman and degrading”, “unworthy of Ireland in 2026”, and among the worst he has seen across Council of Europe states A report by the European Committee for the Prevention of Torture (CPT) in July documented the “deeply troubling” conditions in Irish prisons It noted that “in all facilities visited, the CPT observed overcrowded cells where three or four prisoners were held in cramped, squalid spaces with insufficient ventilation. Many prisoners, including mentally ill individuals, were forced to sleep on mattresses or flimsy camp beds.” Executive Secretary Hugh Chetwynd has suggested that inmates of Irish prisons would stand a strong chance of winning a case against the State for violations of article 3 of the European Convention on Human Rights, which prohibits ill-treatment
At the root of such issues are chronic, dangerous levels of overcrowding. In March 2024, with the system operating at 108% of capacity, the Department of Justice forecast a 2-9% increase in the prison population by 2030; within 12 months, it had already exceeded the upper limit of this projection. Despite the addition of new prison units last year, the Irish prison system is currently operating at 123% of supposed maximum capacity, up from 115% in 2025. A report by the Prison Overcrowding Response Group has noted that this is only set to continue to rise alongside increased garda recruitment
While some public commentators advocate for decarceration strategies, at the government level, policy considerations beyond carceral solutions are extremely limited. The warning of the Chief Inspector that “no comparable jurisdiction has ever succeeded in building its way out of overcrowding” has hardly been heeded. Current plans centre on further expansion of prisons, with almost half a billion euro in capital investment to create more than 1,500 additional spaces for inmates between 2026 and 2030. Despite the great majority of recommendations made by the Prison Overcrowding Working Group focusing on reducing the prison population through alternative sentencing mechanisms, the government has instead prioritised expanding capacity while tacitly allowing prison numbers to continue on their upward trajectory. It also ‘repeatedly pushed’, despite apprehension from the Irish Prison Service, for the reopening of the Curragh Military Prison for civilian use.
Despite the grave realities of carceralism, the Irish political imagination remains fixated on it as if there were no alternative The prison, as Angela Davis says, is considered ‘an inevitable and permanent feature of our social lives’ Already marginal in most parts of the world, the embryonic movement for prison abolition in Ireland has a long way to go towards even being taken seriously as a political possibility. Yet historically this was not the case. Prior to the consolidation of English colonial rule, Ireland was a society without prisons. The native system of Brehon law centred on restitution and reparation rather than incarceration. Why then, over a century on from independence, is a shift to restorative justice so difficult to imagine?
Carceralism and the colonial regimes of truth
Quijano’s concept of coloniality provides the key theoretical framework for understanding Ireland’s entrenchment in colonial infrastructure. Coloniality refers to the enduring structures of power, knowledge, and subjectivity produced by colonialism that persist after formal colonial rule has ended. Coloniality in this formulation has profoundly impacted the Irish psyche Decoloniality consequently refers to the ongoing project of dismantling these structures A radical pivot from punitive justice to restorative justice is a necessarily decolonial programme, reconstituting the principles of native Irish law while rejecting the historically constructed and cultivated instinct for carceralism. A Foucauldian lens is particularly useful in understanding what conventions, norms, and rules are accepted in the postcolonial state. Policies are debated and unconsciously take shape within invisible intellectual boundaries which Foucault calls ‘regimes of truth’ which determines what is accepted as natural or selfevident
Coloniality, as a regime of truth, conditions us to accept what are objectively historically contingent, subjective political choices as undeniable, common sense truths Colonialism imposes a regime of truth which juxtaposes that which is civilised – the coloniser – with that which is primitive – the colonised. Prisons, a tool of colonial governance, are thus identified, largely subconsciously, as an aspect of civilisation, and their absence as one of backwardness. Within contemporary Ireland’s postcolonial regime of truth, norms and institutions which are legacies of British rule and find their counterpart in developed European societies are modern; norms and institutions founded upon indigenous, precolonial knowledge and ways of living are unworthy of consideration
This has the effect of obscuring the value of a body of law which privileges restoration over punishment. Brehon law approached wrongdoing not as an offence against the state but as a disruption of social relationships requiring repair. Offences which in modern law ordinarily carry a prison sentence were typically addressed through a sophisticated system of compensation. In the case of non-lethal injuries, the
injured party was entitled not only to a payment for the harm itself but also to sick-maintenance, covering care during recovery, with further penalties if these obligations were neglected. Property offences such as theft required restitution of goods or their value, sometimes with additional penalties, and were enforced through mechanisms such as distraint or the intervention of sureties rather than imprisonment Even the gravest harms, such as homicide, were typically resolved through the payment of the éraic (“death-compensation”) fine, alongside the victim’s honour-price, to the victim’s kin group. The emphasis of such compensation was not primarily economic, but relational. Their purpose was to restore honour, provide a sense of closure, and reintegrate both victim and offender into the community – radical notions in the discourse of criminal justice today, but common sense in Ireland for thousands of years
The prison only arrived in Ireland with colonial rule. The first record of gaols on the island appear in the 13th century following the Anglo-Norman invasion, with carceralism instated as official policy for the first time with two Westminster statutes transferred by Edward I It was the Elizabethan wars, and the end of natively-governed jurisdiction in the late 16th and early 17th century which delivered the ‘coup de grâce’ to native Irish law The institution of Brehon law depended and was depended upon by the social infrastructure of the world it inhabited, and died with it.
Imagining decolonial futures
The point of reaching this understanding is not to argue for the full reconstitution of the indigenous Gaelic social order, and Brehon law along with it. Rather, it is to disrupt the hegemony of an assumed universal modernity Taking prison abolition and restorative alternatives seriously requires
dismantling the colonial regimes of truth in which carceralism is a necessity. Per Walter Mignolo, 'decoloniality aims at epistemic reconstitution', the recovery of indigenous ways of thinking and doing. Recovering these ways of knowing can reveal innovative and powerful ways of reimagining how we address harm.
Decolonial thought would also allow for the serious consideration of other indigenous modes of justice from outside of Ireland In conversations of penal reform, European models are automatically looked towards as models worth emulating. Even the most progressive commentaries on penal reform remain confined within inherently limited punitive, Eurocentric discourse By contrast, indigenous formulations of law often prioritise repair and restitution in dealing with harm, and offer timehonoured, concrete examples of practicing restorative justice which are ignored in Eurocentric models Robert Yazzie, late Chief Justice of the Navajo Nation, contrasts the “vertical” model of Anglo-European law, grounded in hierarchy, coercion, and punishment, with a “horizontal” system centred on dialogue, restitution, and collective responsibility Here also the purpose of law is relational, seeking meaningful repair, rather than abstract punishment, for the harms that arise in the conduct of society
The western, Anglophone instinct to dismiss indigenous ideas as irrelevant to ‘proper’ policy discussion is rooted firmly in a colonial regime of truth which automatically privileges top-down, securitised, state- (rather than community-) led models as superior. Those who consider themselves to be meaningfully committed to anti-racist, anticolonial futures should interrogate this bias within themselves In truth, much could be gleaned from considered, serious study of indigenous concepts of law and restorative justice.
Conclusion
This paper should not be taken as a detailed introduction to either prison abolitionism or decoloniality. While other authors provide more comprehensive entry-points to each topic, the argument here seeks to offer a valuable analytical link between the two.
Prison abolition should be understood and analysed as a tangible long-term project of decolonisation, with meaningful implications for epistemic and institutional decoloniality The logic of abolition and decolonisation are mutually reinforcing in that both challenge the basis of entrenched ideas of what is natural and possible. Both simultaneously require and make possible radical reimagining of possible futures, political and judicial.
This is not to argue that merely to decolonise by reverting back to the social order of the 12th century offers a workable strategy for social activists. Rather, it is simply to highlight that there are other ways of doing things in the legal sphere, many of which appear backward only due to the distorting lens of coloniality Decolonisation is not primarily a project of recovery, but of futurity; as Fanon says, ‘we must make a new start, develop a new way of thinking, and endeavor to create a new man’. Indigenous systems of knowledge, Irish and international, should be looked towards as equally, if not more legitimate models to be assessed and emulated, and Eurocentric paradigms left behind. Through a sustained project of decoloniality, our understanding, and thereby our attitudes, towards the inevitability of the prison may evolve, opening up radical new possibilities for restorative, repair-oriented justice in Irish society.
When Theory Meets Reality: Restorative Justice in Ireland and Beyond
by Stefana Maganu
Introduction
The collective perception of crime is that it must be followed by consequences, but a revenge-driven past has taught us that the cure to criminality is not the cancellation of one evil with another. Even if we do not desire to completely abolish the idea of punishment entirely, legal systems worldwide are attempting to reshape penal policy by embracing more extensive solutions that maximise prevention and utility, rather than simply giving voice to theories rooted in revenge
With that said, in order to effectively reshape penal policy we need to examine what punishment means and its underlying purposes.
What is punishment?
In contemporary times, punishment is often perceived as both an obligation of the State and a right of the victim. The mandatory existence of punishment is strongly reflected in the philosophy of Immanuel Kant, who regarded this concept as a moral duty. His position draws upon a more retaliatory perspective which corresponds to the classic retributive idea that punishment should correspond directly to the seriousness of the crime.2 This approach is often rooted in vengeance, aimed to correct the past. However, both statistics and scholars have shown that abstract theories founded on metaphysical principles do not match the needs of our justice system. In other words, the theories of pure moral philosophy fail to satisfy the facts of real criminal cases that involve people with different needs and from different backgrounds But if punishment does not only correspond to revenge, what are its other purposes? Finding an effective tool for combatting crime means understanding the goals of the justice system One of the most important contributions to criminal law is the expressive function of punishment The mere existence of written laws that prohibit acts which are subsequently stigmatised by the community has a deterrent effect in itself, as it communicates
to the possible offender that the society he lives in protects a set of values and punishes certain behaviours. Furthermore, a well-known statement is that punishment aims to combat recidivism by associating imprisonment rehabilitation and deterrence. When asked about this, those who witness the realities in prison have a different opinion: that the time in prison achieves the exact opposite.
Is Restoration The Solution?
Born to fill the holes of the retributive approach, restorative justice is on its rise, aiming to benefit the legal system by repairing the injured party rather than punishing the perpetrator, strengthening the idea that the victim’s needs should always prevail.
There are several conceptions within the restorative bubble, including the encounter and the reparative conceptions. The focus is on a conversation about the crime between the victim and the perpetrator, where they discuss the consequences of the event and what could be done to ameliorate the harm caused. On the same note, the transformative conception draws attention to structural injustice, concentrating on identifying and aiming to solve the underlying causes of crime, such as poverty, issues within the family, lack of education and more. It is interesting how the use of a transformative approach is encouraged even beyond the criminal borders, including daily conflicts between neighbours or coworkers
In Europe and other parts of the world it is described as an independent “mediation” between those involved in the crime, being totally separate from prosecution. It has been emphasised that the restorative effect goes beyond the affected parties, as it has proven to have an impact on the community as a whole, reinforcing the idea that punishment is not
the most effective solution in criminal law.But does this mean that restorative justice is the most effective alternative for legal systems worldwide? And if so, is it available for all types of offences? The next section is dedicated to these questions.
When Theory Meets Reality: Ireland and abroad
Although the concept of restorative justice might seem rather unclear at first , we can better understand it by analysing how it is applied across different countries Cultures have developed a wide range of restorative approaches in order to face crime in both formal and informal settings
Demand for restorative justice nearly doubled in Ireland in 2024, with over 100 completed cases where a direct or indirect conversation had taken place between victims and offenders The Irish Probation Service developed a restorative justice action plan in May 2025 intended to collaborate across the justice sector to improve access to mediation. It should be noted that these encounters do not take place unless both parties consent, usually at the pre-sentencing stage. Members of RJS4C have analysed the major effects of restorative conference completion on different groups of offenders and have concluded that this approach has a visible effect on criminality, showing a reduction in both the number of cases and the severity of subsequent offences. In addition, they have emphasised that these services are vital for sexual abuse survivors, but this is still controversial among some womens’ organisations, who claim these discussion might re-victimise women victims.
A quite unique and holistic approach can be seen in Canada, where restoration takes the form of sentencing circles. Here, not only the offender and the victim, but also their families, the judge, police officers, defence counsel and even other members of the community stand in a circle facing each other and discuss. Their discussion comprises a variety of topics meant to identify the victim’s needs, the protection of
the community and the offender’s rehabilitation. As opposed to the “us versus them” setting in court, this arrangement is simply meant to facilitate a conversation where the power between the authorities and members of the community is equally distributed A completely informal mediation took place in an experiment in 1997 in South Africa, where Peacemaking Committees made up of local residents solved disputes in their community, including civil and criminal matters The initiative started with no formal control by the courts, but as the movement evolved, the police started referring to these committees in order to solve conflicts, and the results are apology statements and compensation.
Conclusion
We are in a continuous search for a cure to criminal behaviour, but as society evolves, criminal law changes its shape with it and requires more than a singular answer to the issues we face today. Although not in its final version, restorative justice echoes old practices around the world and proves its effectiveness and marginal impacts on both the victim and the aggressor, but ultimately on our justice system. This holistic approach to justice contributes to our understanding of crime and rebuts our instinctive need for revenge through harsh punishment, adapting continuously to our world.
The Architecture of Healing: Restorative Justice as Democratic Imperative
By Eliza Heaslip
When Ireland's restorative justice referrals surged 88% in 2024 to reach 842 cases the highest volume since systematic recording began in 2019—it signalled a quiet revolution in the democratic conceptualisation of accountability. Yet this momentum unfolds against a sobering backdrop: in England and Wales, the proven reoffending rate stands at 28 3% as of late 2023, a figure stubbornly stagnant for over a decade With rearrest rates reaching 68% within three years of release across American jurisdictions, prison populations approaching crisis levels, and mounting evidence of racial and socioeconomic bias, the retributive model faces not just criticism but an existential crisis of legitimacy. Ultimately, restorative justice is not merely a procedural alternative, but a necessary democratic evolution: it transforms justice from stateadministered vengeance into a process of collective healing and relational repair.
Conventional criminal justice rests on three pillars: deterrence, incapacitation, and desert, each crumbling under empirical scrutiny. The deterrence hypothesis, a cornerstone of Benthamite utilitarianism, consistently fails to manifest in longitudinal data. Contemporary meta-analyses, such as those by Nagin, demonstrate that sentence severity (the length of the term) has a negligible deterrent effect compared to the certainty of apprehension. The contrast in outcomes is stark: Norway’s rehabilitative model, capped at a 21-year maximum (with 'preventive detention' extensions), correlates with a 20% re-conviction rate within two years Conversely, the United States' focus on incapacitation and 'truth in sentencing' sees a threeyear re-arrest rate of 68% Although these figures are influenced by differing socioeconomic variables, the failure of the retributive model to achieve its primary utilitarian goal of preventing future crime creates an empirical vacuum that unveils a reality wherein the current system prioritises the performance of state power over the democratic duty of public safety.
Incapacitation, the second pillar, fares worse. Michelle Alexander's ‘The New Jim Crow’ documents how mass incarceration recreates racial caste through purportedly neutral policies, a process that fundamentally undermines the democratic promise of equal protection.7 Ireland mirrors this pattern of systemic exclusion: while Irish Travellers comprise approximately 0 7% of the general population, they represent roughly 10% of the total prison population and up to 22% of the female prison estate 8 This fourteen-fold overrepresentation and the even more acute thirty-fold disparity for Traveller women indicates systemic bias rather than ‘criminogenic culture’,a reductive term used to pathologise marginalised groups by suggesting crime is an inherent cultural trait rather than a byproduct of socioeconomic exclusion and institutionalised prejudice. The 2024 Post Office scandal, where R v Misra10 and hundreds of wrongful convictions stemmed from faulty Horizon software, exposes how desert logic enables catastrophic injustice when factual premises prove false What was 'deserved' becomes irrelevant when innocence emerges
posthumously Given these profound empirical and moral failures of traditional criminal justice models, a fundamental reimagining of accountability is necessary, paving the way for the restorative paradigm. Ultimately, when the penal system functions as a mechanism of social exclusion and bureaucratic error rather than resolution, it ceases to be a system of justice and becomes a source of systemic harm. This empirical and moral vacuum necessitates a restorative shift and transition from the performance of state power to a genuine model of democratic accountability
Restoration as Relational Ontology
At its core, restorative justice is a collaborative process that brings together victims, offenders, and communities to address the harm caused by a crime and collectively determine a path toward repair. Criminologist and pioneer of the field, Howard Zehr's foundational insight reconceives crime not as statelaw transgression but as interpersonal harm generating triadic obligations: making amends to victims, repairing community bonds, and facilitating offender reintegration
Building upon Zehr’s triad, the Jurisdicción Especial para la Paz (JEP) represents a shift from the traditional liberal legalism of the innocent-guilty binary toward a model of 'dialectical' justice. As established in the 2016 Final Agreement between the Colombian government and the FARC rebels, the JEP prioritizes the restoration of victims over retributive incarceration, provided that the perpetrator offers a 'full and exhaustive' account of the truth. In Caso 001 (Toma de Rehenes), former guerrillas who acknowledged kidnappings received reduced sentences conditional on full truth-telling and reparations work Victims' organisations increasingly endorse this approach not for leniency but pragmatism, as restorative processes deliver acknowledgment, explanation, and tangible restoration – outcomes retributive trials structurally do not provide.
Ireland's Children (Amendment) Bill 2024 (Proposed) signals similar evolution, expanding restorative endeavours for youth and adult offences.15 Pilot programmes in Cork and Dublin report 85% participant satisfaction and 10-25% recidivism
eductions as a result of specific, highly effective restorative justice conferencing as compared to conventional prosecution Where the retributive trial fails to provide acknowledgment, the JEP and Irish pilot programmes succeed by treating truth-telling as a functional legal requirement rather than a procedural by product Victim Agency and Epistemic Justice
Nils Christie's seminal 1977 critique that states 'steal' conflicts from affected parties illuminates restorative justice's most radical dimension: returning agency to those harmed. Traditional prosecution reduces victims to evidentiary instruments; their trauma becomes state property weaponised against defendants Restoration repositions victims as epistemic authorities entitled to articulate harm in their terms, pose questions prosecutors might not ask, and shape accountability mechanisms
Rwanda's post-genocide community-based justice mechanism – the Gacaca courts, closed in 2012, demonstrated this power. Despite the controversies that mired the Gacaca Courts, these community tribunals addressed over one million cases.18 Survivors involved in the process repeatedly emphasised that perpetrators' acknowledgments mattered more than sentence length, as documented in Phil Clark's ethnographic research This preference for substantive answers transcends transitional justice settings, as evidenced by UK Ministry of Justice data reinforcing victim preferences: 78% of victims who participated in restorative conferencing would recommend the process to others, 85% reported positive experiences despite emotional difficulty.20 These figures contest narratives positioning restoration as marginal or soft; victims themselves overwhelmingly choose processes delivering concrete answers over abstract desert.
Justice as Democratic Praxis
Restorative justice's deepest insight reconceives justice not as institutional verdict, but as participatory process – messier, more demanding, profoundly more democratic than retributive alternatives. It requires moral courage from victims who must confront those who harmed them, from offenders who must face consequences more personal than anonymous
imprisonment, from communities who must accept responsibility rather than delegate to professionals, and from societies willing to acknowledge that conditions producing crime often constitute injustice themselves.
This demanding, imperfect labour transcends the reductive binary of guilt and innocence, acknowledging participants as moral agents entitled to agency rather than mere objects of bureaucratic processing. The empirical record confirms the restorative model's efficacy: lower recidivism, heightened victim satisfaction, and reduced fiscal burdens, while aligning with a constitutional order that prioritises human dignity over calibration of suffering.
Ultimately, the transformation is ontological; pivoting from the retributive inquiry of 'what punishment is deserved' to the restorative imperative of 'how may this harm be redressed.' This shift from abstract desert to concrete repair represents perhaps the most significant jurisprudential evolution since the Enlightenment’s rejection of judicial torture in favor of the rule of law.
Critical Limitations
For restorative justice to fulfill its democratic promise, it must confront the structural power asymmetries that risk undermining its egalitarian goals As feminist scholars such as Daly and CurtisFawley contend, the romanticisation of the restorative 'encounter' often masks deep-seated power asymmetries. In cases of gendered violence, the lack of specialist facilitator training and the absence of robust procedural safeguards risk transforming the conference into a site of re-traumatisation. Consequently, the retention of conventional prosecution is not merely retributive relic, but a necessary protection for victims when power disparities preclude the possibility of a truly egalitarian dialogue.
Restorative processes encounter significant friction when applied to structural or 'victimless' crimes where the harm is diffused across the body politic. The tax fraud conviction of Silvio Berlusconi serves as a pertinent case in point: in the absence of a singular, identifiable victim, the restorative encounter risks becoming a conceptual absurdity 22 Environmental ecocide and corporate malfeasance destabilise the social contract in ways that individualized repair frameworks are ill-equipped to address. Consequently, justice must remain a pluralistic endeavor, where restorative practices are integrated with rather than a total replacement for the state's power to vindicate public rights
Furthermore, as Elena Marchetti and Kathleen Daly demonstrate in their study of Indigenous sentencing courts, restorative justice is not a culturally neutral vessel The expectation of a 'genuine' demonstration of remorse often relies on Western emotional scripts; defendants whose cultural norms favor silence or averted gazes risk being marked as unrepentant Without sustained critical reflexivity, the restorative encounter risks becoming another site of assimilation, where accountability is measured by one's fluency in dominant cultural norms rather than substantive repair
Integration Without Abandonment
The path forward demands integration, not replacement Even Anders Breivik's incarceration at Norway's Ila Prison combining maximum security with therapeutic programming, education, and dignity-preserving conditions demonstrates how restorative principles can inform responses to irredeemable acts 24 Similarly, Ireland's Children Act 2001 (as amended 2024) establishes this tiered approach: restorative intervention as presumption, detention as exceptional measure. Pursuant to Sections 96 and 143 of the Children Act 2001 (as amended), the Irish youth justice system operates on the statutory principle that any penalty imposed on a
child shall be the least restrictive form possible, with detention being permissible only as a measure of last resort where no other appropriate sanction is available. Preliminary data suggests youth crime declining not through intensified punishment but through addressing underlying drivers such as family dysfunction, educational exclusion and substance dependence.
Global momentum is undeniable Brazil's favelabased restorative circles, as pioneered by Dominic Barter, as well as Northern Ireland's legacy consultations addressing Troubles-era violence, signal widespread recognition that retributive models have exhausted their legitimacy. These initiatives share common recognition: justice as counter-harm has failed comprehensively.
Having spent centuries calibrating the scales of punitive suffering, we are finally confronting the restorative necessity of healing. This paradigm shift suggests justice is not a product of state-sanctioned retribution, but an outcome of the more demanding— and infinitely more human process of restoration The legitimacy of the modern penal state rests upon its commitment to human dignity, a commitment fundamentally undermined by the cyclical violence of the retributive model. If justice is to be anything more than statesanctioned harm, it must prioritise the restoration of the social fabric over the sterile finality of punishment.
The restorative paradigm represents a necessary evolution: a shift from the replication of harm to its active resolution Restorative justice, despite operational complexities, offers our most viable paradigm for jurisprudence that heals the broken without breaking the human
Confessions for Leniency – Chinese Reform and Comparative Analysis
by Hosei Kishida
Confessions and plea bargains are not foreign concepts to any single criminal justice system. Their basic premise revolves around the defendant pleading guilty or no contest in exchange for a more lenient punishment, usually through a reduction in charges or a mitigated sentence In Ireland, guilty pleas and confessional admissions are common mechanisms for resolving criminal cases, though they operate without a formal statutory plea-bargaining system A defendant may plead guilty, sometimes to a reduced charge accepted by the Director of Public Prosecutions (DPP), resulting in a lessened sentence. The Chinese codification of confession and acceptance of punishment under the 2018 amendment to the Criminal Procedure Law of the People’s Republic of China is distinctive in its express emphasis on repentance, acknowledgement of wrongdoing, and reconciliation with victims, rather than solely on procedural efficiency The central aim of this comparative analysis is to demonstrate the importance of speedier acknowledgements of wrongdoing and, also, the importance of including victims throughout the process of confessional criminal proceedings
The Confession-Leniency System
The Chinese codification of confessions was passed in 2018 through the Supreme People’s Court and the Supreme People’s Procuratorate via programs promoting “leniency for confession and acceptance of punishment” (认 罪 认 罚 从宽). Its main goal is not only the promotion of procedural efficiency but also the encouragement of victim compensation and reconciliation. Prior to this program, Chinese legal systems treated confessions and voluntary surrender as more of a mitigating circumstance, with sentence reductions being discretionary, and this plea-style
resolution lacking formal structure. This reform changed four distinct things.
I. The codification includes prosecutorial sentencing recommendations whereby prosecutors may issue formal sentencing recommendations when a defendant confesses and accepts punishment The courts often adopt said recommendation. The recommendation forms part of a structured statutory process codified in the 2018 amendment Sentencing recommendations are therefore embedded within a formal leniency mechanism triggered by the confession and acceptance of punishment.
II. The codification ensures that defendants sign a formal written document acknowledging guilt and accepting punishment the “Written Statement of Confession and Acceptance of Punishment” (认罪认 罚 具 结 书 ). This document is required for the leniency procedure It confirms the defendant understands the charge, admits the criminal facts, agrees with the sentencing recommendation, and acknowledges awareness of procedural rights The signed statement activates the application of the confession-leniency mechanism
III. The codification integrates victim compensation into sentencing, whereby the defendant (or family) may meet the victim, negotiate compensation, and issue apologies. The victims may provide forgiveness statements that can influence sentencing recommendations. Compensation and reconciliation may therefore form part of the structured consideration of leniency under the mechanism
IV. The reform actively encourages confession-based resolution, with prosecutors informing defendants about the availability of the leniency procedure and defence lawyers advising on confession options. Under the confession-leniency system, an early confession triggers a standardised procedural pathway. Once a suspect confesses and signs the Written Statement of Confession and Acceptance of Punishment, the case moves onto a designated
procedural track The procuratorate may issue a specific sentencing recommendation, reducing unpredictability and limiting sentencing disputes, with courts adopting simplified procedures with abbreviated hearings.
Victim Closure under the Confession-Leniency System
The reform institutionalises early and concrete acknowledgement of guilt For victims, this legal architecture transforms confession into a predictable resolution mechanism. The admission of guilt is tied directly to an anticipated sentencing outcome, narrowing uncertainty about how the case will conclude Rather than enduring a prolonged period in which both guilt and punishment remain indeterminate, victims receive earlier confirmation that wrongdoing has been acknowledged and that consequences will follow. This compression of stages – confession, sentencing proposal, and adjudication – reduces the extended psychological limbo that often accompanies criminal proceedings. Because trauma is frequently aggravated by delay, adjournments, and uncertainty, a system that produces structured and expedited acknowledgement can aid emotional stabilisation and closure.
By contrast, in Ireland, acknowledgement typically occurs only when a guilty plea is formally entered before the court, and sentencing remains fully within judicial discretion. While early pleas may be encouraged, there is no structured procedural mechanism that links admission of guilt to a clear sentencing expectation at the investigative or prosecutorial stage. As a result, even where a plea is anticipated, victims may continue to face uncertainty regarding both the timing and outcome of proceedings. In contrast, the Chinese model’s
consolidation of confession and sentencing expectation offers a clearer and earlier signal of accountability, which may enhance the victim’s sense of resolution.
Furthermore, the Chinese reform embeds compensation and reconciliation into thesame procedural track The availability of leniency incentivises defendants to engage in restitution discussions and, where possible, to seek victim forgiveness Compensation agreements and apologies under the Chinese codification may influence the prosecutorial sentencing recommendation and thus form part of the overall resolution. This integration has tangible implications for victim recovery. Financial harm is a common and often immediate consequence of crime, yet in Ireland, compensation mechanisms typically operate separately from the determination of guilt, through court-ordered compensation or applications to the Criminal Injuries Compensation Tribunal (CICT) These processes may occur after conviction and are not structurally tied to confession or plea entry By contrast, the confession-leniency mechanism ensures acknowledgement of responsibility with restitution efforts, allowing compensation to be addressed earlier and within the same procedural moment as the admission of guilt and acceptance of punishment. For victims, this temporal proximity between acknowledgement and repair can strengthen both material recovery and psychological closure.
Empirical evidence suggests that victims of violent crime frequently incur substantial out-ofpocket costs and that prolonged legal proceedings can intensify psychological distress A 2023 study from the Shanghai People’s Procuratorate reported that 342 cases approximately 17.5% of those examined involved voluntary victim forgiveness achieved through reconciliation processes within the confession-leniency framework. While forgiveness is not universal, its presence within a significant portion of cases indicates that the mechanism is capable of facilitating negotiated repair alongside adjudication
Challenges of Integration in Ireland
Though there are clear benefits of a Chinese confession-leniency reform being integrated into an Irish system for victims, there are constitutional and normative challenges that need to be considered. For one, under the Bunreacht na hÉireann, the defendant is guaranteed the right to a fair trial, which includes the presumption of innocence, protection of due process, and judicial independence. Under a Chinese system, a system that formally incentivises confessions through structured sentencing recommendations and procedural fast-tracking, coercive pressures to confess may exist This undermines the voluntariness of guilty pleas and dilutes adversarial safeguards. Any perception that institutional alignment reduces independent judicial discretion would likely face constitutional scrutiny –especially in a context where the rights of defendants are so heavily emphasised. Specifically, though, the Irish system relies on the independence of the DPP and the defence, where the judiciary maintains a clear separation from prosecutorial negotiation and where there is no formalised statutory plea-bargaining regime. China’s pre-structural procedural track that often expects courts to adopt prosecutorial recommendations can undermine judicial discretion and blur the lines between prosecution and adjudication Further, if Ireland institutionalised a structured “confess early for guaranteed leniency” pathway, it could risk vulnerable defendants (young, mentally ill, socioeconomically disadvantaged) to confess, ending in the differential between trial sentencing and confession sentencing becoming coercively large.
All of this means that if Ireland were to incorporate aspects of a confession-leniency framework, it would likely take the form of a narrow, rights-preserving procedural reform rather than a wholesale structural transformation This may look like the judges retaining full and independent sentencing discretion or courts requiring mandatory legal representation
and explicit confirmation of voluntariness. The upshot of this is that there is room for further consideration of victims within the Irish common law while also considering safeguarding the accused against abuses of power.
Conclusion
The Chinese confession-leniency reform demonstrates a model in which confession is not merely an instrument of efficiency but a structured vehicle for repentance, compensation, and reconciliation. The system seeks to restore social harmony while accelerating case resolution For victims, this may offer earlier acknowledgement of wrongdoing, quicker psychological validation, and faster access to compensation factors that empirical research suggests are significant in mitigating trauma and economic hardship However, the transplantation of such a model into Ireland would not be straightforward. Ireland’s constitutional architecture, rooted in adversarial safeguards and judicial independence under Bunreacht na hÉireann, places substantial weight on voluntariness, equality before the law, and the preservation of trial rights. The Chinese reform challenges Western systems to reconsider whether victims are sufficiently integrated into the criminal process, and whether restoration should play a more explicit role in sentencing
Restorative Justice at the International Criminal Court
by Niko Carter
The International Criminal Court (ICC) was founded in 1998 with Restorative Justice (RJ) mechanisms embedded in its foundation. The court distinguished itself from its predecessors by taking an explicitly victim-centered approach, owing to the revolutionary Rome Statute on top of which the institution was founded Despite these ambitions, the court has struggled to reconcile RJ with perceived dilemmas and inconsistencies with its role, mainly on two accounts First, that RJ operates at the expense of victim’s justice and need for retribution, and second, that it jeopardises the court's authority and legitimacy. I will reject these two accounts on the basis that they mischaracterize how RJ would be integrated and will give recommendations for how the ICC might go about addressing these concerns through structural reforms. This essay argues for prioritizing reparations and guarantees of non-recurrence (GNR), as these measures allow the ICC to reconcile its restorative aims with the two critiques outlined above
Why and How Restorative Justice Must Deliver for Victims - Reparations as a Solution
Though increasingly RJ has been recognized at international courts, some proponents of traditional judicial punishment have been very vocal about their disapproval of Restorative Justice. Critics such as Richard Wilson argue that "RJ unfairly demands that victims sacrifice their needs in the interest of national healing". However, it is a misconception that restorative justice would come at the expense of victim healing. As legal academic Juan E. Mendez states, it is crucial that reconciliation is not conceived "as an alternative to justice" and that Restorative Justice is not conceived as an "alternative to retributive justice" In practice, this looks like a hybrid justice system, sometimes referred to as restorative transitional justice. It is slowly being recognized that restorative justice is compatible with traditional forms of punishment and does not stand for the
amnesty of political criminals. In fact, it should be understood as a system that allows for a broader definition of punishment other than imprisonment, including sanctions.
With that established, empirical evidence shows that restorative justice conferences structured voluntary meetings in which victims and offenders engage in facilitated dialogue, with the offender required to admit responsibility, to discuss the harm caused and negotiate reparative outcomes such as restitution or community service combined with measures of material and non-material reparations, are highly effective in providing victims with closure and high levels of satisfaction. Studies conducted by Strang et al in their evaluation of restorative justice conferences found that 96.2% of victims who participated in conferences reported satisfaction with
case outcomes, compared to 78 8% in the traditional court control group a statistically significant difference. Further comparative research across victim-offender mediation programmes in the United States, Canada, and England corroborates these findings: in Canadian schemes, victims who met their offenders were more likely to receive answers to their questions (87% versus 51% in the comparison group), more likely to value apologies from offenders (74% versus 40%), and less likely to remain upset about the crime and the offender (53% versus 66%) Importantly, these studies also reported no evidence of revictimization, suggesting that carefully structured encounters promote healing rather than harm
There is nuance to the relationship between reparations and the benefits of restorative justice. While research conducted by Shapland et al. suggests that reparations contribute to victim healing even when symbolic for example, non-material forms of apologies or an acknowledgement of guilt, with many victims found to be satisfied with relatively small amounts of compensation appreciated for their symbolic value the aforementioned positive results were found in conference proceedings that resulted in material reparations Therefore restorative justice advocates must acknowledge that it is largely tangible, material reparation that contributes to legitimizing this system of justice and the benefits that come from restorative justice models. Research by Strang et al in the RISE experiments also shows that nearly one-third of victims attended restorative justice conferences specifically to recover material reparation, highlighting its importance in validating the process. This is further supported by research showing that when restorative justice conferences are held, reparations are more likely to be agreed upon and fulfilled than through traditional court proceedings alone Reparations thus incentivize attendance at these restorative justice conferences that are so effective in victim healing Overall, restorative justice and reparations have a positive reinforcing effect, where the incorporation of one allows for the other to also be more likely to be used.
Reforms on Reparations
Effective Guarantees of Non-Repetition and Restorative Justice
The idea that the authority of the ICC is anchored in its retributive nature is not uncommon.
Article 75 of the Statute states, "The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, tvictims, including restitution, compensation and rehabilitation " Despite both material and symbolic reparations being embedded in the ICC's foundations, they are rarely employed in practice and even less frequently enforced a gap the UN must take active steps to address. The Statute establishes the Trust Fund for Victims, charged with administering reparations awards where offenders are declared indigent, as well as providing general assistance to victims, their families, and communities. The inadequacy of this system was made plain in Prosecutor v Lubanga, the first case ever prosecuted by the ICC: though a collective reparation award of 10 million USD was issued in 2010, it has yet to be implemented to this day. This failure is partly structural the Rome Statute did not provide actual principles for awarding reparations, leaving the Trial Chamber to develop an initial framework, which in turn passed much of the decision-making responsibility to the Trust Fund for Victims. With the resources of both defendants and the Trust Fund remaining scarce, any reparations awarded are likely to be modest. The Appeals Chamber has acknowledged this, noting that a community-based approach would generally be more beneficial and carry greater utility than individual awards, given limited funds and the avoidance of costly verification procedures. Collective awards such as public memorials, community centers, and social projects have been proposed as practical alternatives. However, without a binding and reliable framework, these remain aspirational It is therefore incumbent on the UN to pressure the Appeals Chamber to establish clear, enforceable standards governing how reparations are to be awarded and paid — ensuring that accountability does not end at conviction, but extends meaningfully to the victims who need it most
As mentioned in the journal for ethics and armed forces, the ICC has continuously interpreted the Preamble of the ICC Statute, which stipulates the determination ‘to put an end to impunity’, to be primarily establishing retribution. Then, does the ICC risk losing legal and moral authority if it leans into restorative justice measures?
In recent years, the ICC has been frequently criticized for its bureaucracy and inability to effectively deliver justice. The court is indeed highly bureaucratic and famously faces various other systematic issues including enforcement and state sovereignty, which have all contributed to its losing authority. In what is sometimes called the “justice gap”, academics also argue that victory at trial does not necessarily lead to the reparation of damage caused to victims, nor does it prevent non-repetition. However, as Stuart Ford mentions, it is important that we assess the effectiveness of ICC by reference to its own goals. The ICC is not only responsible for securing prosecutions, but also for preventing violations of international criminal law.” Therefore, the maintenance of the ICC’s authority is dependent to some extent on ensuring non-repetition becomes a matter of maintaining authority for the ICC
Some vocal proponents for retributive justice argue that RJ is entirely ineffective in preventing nonrepetition. Wilson notes that “the empirical evidence from other democratizing countries shows that retributive justice can itself lead to reconciliation” in this case meaning “peaceful coexistence and legal, non-violent adjudication of conflict”
Comprehensive case studies conducted by Jeffrey D. Pugh on the non-repetition of international transitional crimes suggested that a hybrid model of retributive and restorative justice is the most successful in ensuring long-term peace The study compared the restorative, retributive and hybrid models by reference to 25 case studies across three countries; El Salvador, Rwanda and Mozambique
Employing the metrics of political stability, peacefulness, and human security, it showed that hybrid models outperformed the others by a consistent margin on all three Though the margin between the models was slim, it consistently showed a noticeable difference and therefore serves to counter the notion that RJ is inherently ineffective in mitigating future repetition of crime.
Reforms on Guarantees of Non-Repetition (GNR)
ICC should go further in its efforts to ensure nonrepetition by adopting a broader definition of Guarantee of Non-Repetition This could include introducing truth commissions – non-judicial, temporary bodies designed to investigate past patterns of human rights violations, often serving as a complement to criminal prosecutions in transitional justice settings – a distinctly restorative mechanism that can also be effective in preventing Non-repetition, and therefore regain some authority and strengthen its legitimacy
The strength of truth commissions is that they prevent repetition in ways that traditional prosecutions cannot. While the ICC focuses on individual guilt, truth commissions identify and address the causes of abuse and violations in order to prevent their recurrence They target institutional failures, systemic patterns and cultural conditions that enabled the atrocities. In their critical, long-term investigation, they are able to identify historical patterns and work towards dismantling the culture of silence and distrust that normalizes impunity It is crucial to emphasise that this would be a complementary addition to existing punitive measures and not as an alternative form of justice Truth commissions do not establish individual criminal responsibility and the ICC’s commitment to ending impunity must remain uncompromised. Nonetheless, the addition of truth commissions could be a step towards the ICC regaining some authority and legitimacy by fulfilling a stronger guarantee of nonrepetition
Conclusion
In conclusion, restorative justice does not undermine the ICC’s legitimacy but strengthens it when properly integrated with retributive mechanisms. By prioritizing reparations and meaningful guarantees of non-repetition, the Court can better fulfill its mandate to deliver justice to victims while preventing future violations Rather than replacing retribution, RJ should function alongside it in a hybrid model that enhances both accountability and long-term peace.
Two Wives Too Many? Assessing Contemporary Approaches to Criminal Law Reform on the Crime of Bigamy in Modern Ireland
by Ciara Mangan Lynch
The law on bigamy is a useful case study for demonstrating how contemporary approaches to crime and punishment can inform discussions on reforming Irish criminal law. The historic approach to bigamy has remained in the background of contemporary Irish society, helping to inform restrictive approaches to societal developments that do not conform to traditional Irish models This article will demonstrate that the smallest changes can help to make Ireland more accepting of cultural and social differences, particularly in redefining what marriage means in contemporary Ireland. Reforming the law on bigamy by adopting a more open-minded, contemporary approach to the punishments imposed in criminal law could allow more questions to be asked about the penalties attached to crimes that were historically considered morally reprehensible.
Legislative Background
There are two elements to the illegality of bigamy First, a marriage contracted during a “prior subsisting marriage” is null and void retrospectively. Secondly, the person who entered into a second marriage while already engaged in a prior subsisting marriage can be held liable under section 57 of the Offences Against the Person Act 1861 (hereafter ‘the Act’), which carries a punishment of up to seven years in prison if convicted. Bigamy has traditionally been considered to be exploitative of vulnerable persons, which is the rationale behind the criminalising the practice. The law acknowledges a difference between bigamy as “an offence which appears to require deception” and polygamy, which has traditionally been regarded as a cultural practice that is not legally recognised in Ireland Bigamy is the act of “marrying someone while you are already legally married to another person” and has historically been understood to be a threat to the traditional construction of marriage in Ireland, hence its criminalisation. Polygamy is similarly anathema to the Christian conception of marriage in Ireland and involves being married to
more than one person at the same time. However, polygamous marriage has traditionally been understood to be a cultural and religious practice that is legally recognisable in jurisdictions outside of Ireland, and thus have not been subject to the same criminalisation as bigamy. Currently, monogamous marriages are the only type of marriages recognised in Ireland “through the enforcement of the criminalisation of bigamy ” Bigamy is criminalised under the Act, and there has been no change in the legislation concerning bigamy since its inception The Law Reform Commission’s Report on the Law Relating to Nullity of Marriages recommended that there should be no change in relation to bigamy.
Decriminalising Bigamy
Academic arguments for decriminalising bigamy have centred on the outdated nature of the Act and the language used therein as rationale for the abolition of bigamy as a criminal offence In her proposal to decriminalise bigamy in Ireland, Harding highlights that the unclear language used within section 57 of the Act is such that it could be open to constitutional challenge Throughout the proposal, Harding refers to English case-law as justification for her argument that bigamy ought to be decriminalised in Ireland, thus highlighting the distinct lack of reported case-law in Ireland referring to bigamy and demonstrating the outdated nature of this provision in the Act. Harding repeatedly acknowledges the confusing nature of the international law relating to bigamy, which is primarily focused on the civil law punishment of rendering the bigamous marriage void ab initio. Additionally, Harding highlights that both the historic and modern rationales for criminalising bigamy are no longer applicable Historically bigamy was criminalised for being exploitative of the institution of marriage, and modern justifications for criminalising bigamy are focused on discouraging “the procurement of sexual relations by fraud.” Harding repeatedly emphasises that social attitudes now more readily accept cohabitation with third parties outside of a
marriage, thus demonstrating a need to update the legal standing of bigamy. In setting out the current and historical justifications for criminalising bigamy, Harding demonstrates that the Act is outdated and is no longer suitable for the Ireland that exists today. Harding argues that the civil penalty of rendering bigamous marriages void ab initio is sufficient to deter the practice and that “the decriminalisation of bigamy will not promote bigamous marriage; it will merely prevent innocent parties from being labelled as criminals ”
Maintaining Criminalised Bigamy
In contrast to Harding, Leahy argues that bigamy ought to be retained as a criminal offence and repeatedly highlights the fraudulent elements of the practice as being justification for the retention of criminalised bigamy. Leahy contends that criminal law is vital in “protecting the institution of marriage from abuse, preventing it from being used to exploit vulnerable persons” and maintains that it is necessary to have a criminal offence of bigamy in Ireland. In arguing that the law should be focused on prevention, Leahy makes a strong case for the retention of criminalised bigamy However, Leahy makes only casual reference to changing social attitudes and cultural landscapes in Ireland and instead focuses primarily on the exploitative nature of bigamy as a criminal offence, using extreme examples of case law. Leahy does acknowledge the need to reform the legislation criminalising bigamy, and notes the confusing language used therein. Leahy maintains that the primary goal of the Act is to prevent “harm and abuse” and thus ought to be retained in modern Ireland. Unlike Harding, Leahy makes no reference to international statutes concerned with bigamy and does not note the possibility of a constitutional challenge based on the Act Leahy’s primary concern is protecting the institution of marriage, thus arguing that criminalised bigamy plays an important role enforcing the traditional Irish conception of marriage.
A More Multicultural Ireland?
The potential decriminalisation of bigamy has garnered academic debate since the beginning of the twenty-first century, coinciding with the growth of a more multicultural Ireland A change in attitudes to
societal institutions in the face of this growing multiculturalism corresponds with the need for a more contemporary approach to be afforded to the practice and legislation of criminal law. Criminal law retains an important function in society, helping to maintain law and order in the face of wrongdoing. Bigamy in criminal law is not an issue that has received much attention by the courts. However, the continued criminalisation of bigamy demonstrates that maintaining historic criminal offences does not lend itself to better governance of society at large Diminishing rates of prosecution for bigamy, particularly since the 1990s, demonstrate that there is no longer a place in Irish society for criminalised bigamy. The threat of a seven-year prison sentence for marrying again while already in a valid subsisting marriage has most certainly had a chilling effect on social understandings of what a marriage in Ireland can look like. Allowing legislation from 1861, which is so unclear that is has potential for constitutional challenge, to dictate that only monogamous marriages are recognisable in Ireland is simply unacceptable in modern times Making bigamous marriages void under civil law is sufficient to satisfy the public policy rationale of defending against the exploitation of vulnerable persons Therefore, it is argued that a contemporary approach to bigamy is one which recognises that there is no need for a criminal punishment to be attached to the practice of having more than one spouse, and that the civil law is enough to defend against possible exploitation.
Additionally, the historic justification for criminalising bigamy is not sufficient in an Ireland that is more multicultural than ever. Ireland and Irish criminal law must adapt to new understandings of societal institutions like marriage and what the law considers a family to be Increased immigration into Ireland has prompted increased debates on affording legal recognition to polygamous marriages, which has prompted Irish courts to state a willingness to recognise polygamous marriages for specific purposes in potential future litigation. Unlike polygamous marriages, bigamy has not been subject to enough litigation to warrant serious judicial consideration of the state of governing legislation. There has been a distinct reluctance to criminally prosecute persons engaged in bigamy since the late twentieth century, thus demonstrating the need to reform the law on bigamy Notably, there has been a distinct difference
in the law’s treatment of bigamy and polygamy, with bigamy being continually treated as being an offence involving deceiving vulnerable persons for the purposes of exploitation. Nevertheless, the characterisation of bigamy as being a crime of deception is not enough to warrant the criminalisation of having two concurrent spouses. The necessity for the law to remain up to date with societal developments and being tolerant of cultural differences is crucial for the future functioning of Irish criminal law It follows that there must be serious reconsideration of what a marriage in a modern, multicultural Ireland can look like The continued criminalisation of bigamy limits what a marriage in Ireland can look like and limits the potential for cultural diversity in modern society.
Conclusion
The law on bigamy must change, if not to prevent constitutional challenge, then to allow Irish criminal law to keep up to date with social attitudes towards marriage and relationships Contemporary approaches to criminal law demonstrate that even the smallest change to criminal offences, such as the abolition of criminalised bigamy, can help create a version of Irish law that is more tolerant of differences and capable of better reflecting society as it is today Historic moral justifications for criminalising bigamy have no place in modern Ireland, and it is sufficient that bigamous marriages are void under civil law to deter the practice. The decriminalisation of bigamy is part of a much wider debate concerning domestic marriage law and recognition of non-monogamous marriages only.
Media, Democracy and the Rule of Law: Is There Any Hope Left for Slovakia?
by Marta Balazova
1.Introduction
Democracy, a quite complex term, has been described as “rule by the people”. It is a system of government where people hold the power, exercised through their elected representatives. The key features of democratic societies include, but are not limited to, plurality of political parties, respect for fundamental human rights and for the rule of law, a democratic voting system and democratic governance The media has been described as a “watchdog” or “guardian” of democracy; a free, independent and pluralistic media is essential for a democracy to exist. Since 2023, Slovakia’s government is led once again, for the fourth time in the history of the state, by a populist Prime Minister. Given the recent governmental practices, outlined below, questions have arisen now more frequently than ever about Slovakia’s political direction.
In this article, I first outline the Slovak government’s attack on media (focusing especially on the attack on public media), arguing that this government practice poses a direct threat to democracy in Slovakia Although the focus of this article is on the media, I briefly define other problematic actions of the government, contending that these actions, taken in conjunction with the attack on the media, can be viewed as signs of autocratisation in the country. In the latter part of this article, I briefly analyse what lessons, if any, can be learnt from Ireland. I conclude by making recommendations to counter this problem, arguing that the fight for democracy starts at the ballot box
2 Attack on the media
Following the general election in September 2023, which was won by Smer-SD (English translation: Direction – Social Democracy; a left-wing nationalist, populist party), a new coalition government was established, with Smer-SD’s chairperson, Robert Fico, in the lead.
The start of Fico’s attack on the media, albeit in an indirect form, dates back to the period preceding the election. He and other politicians from his party did not take part in pre- election debates hosted by TV Markíza, a commercial media outlet. Fico stated that he decided not to participate in those debates because:
“[t]he last three years of work of selected editors and presenters of TV Markíza have been marked by politics and biased misinformation rather than objectivity and impartiality.”
In office, Fico has taken action against both privately owned and public media broadcasters I deal with such action against both types of media broadcasters in turn below
a. Privately-owned media broadcasters
Only a few months in office, Fico started his campaign against Markíza, Denník N, Sme, and Aktuality, all of which are Slovakia’s privatelyowned, independent media broadcasters and newspapers Fico classified these platforms as elitist “enemy media”, accusing them of “openly declar[ing] hatred and hostility” towards his political party, threatening to restrict their access to the government offices.
He also threatened to cut Markíza’s state advertising contracts This would be extremely problematic for Markíza as its most significant contract for advertising is with the lottery company Tipos, which falls under the Ministry for Finance Not only does Tipos pay for the advertising slots, but it also pays for the broadcasting of recordings of draws of games such as Loto or Euromillions. Orders under the
contract with Tipos represent more than half of the amount of money for advertising time that the state has ordered from Markíza between May 2020 and November 2023
Following these Prime Minister’s actions, the owners of Markíza replaced its long-time news director in December 2023. It has since been suggested that all of the above pressure was aimed at silencing Markíza’s critical journalism, but it has proved somewhat effective, since Markíza has reduced its political content and is no longer confronting the government as strongly as it used to.
Fico and his government did not stop at threatening privately-owned news providers. A law has been passed in relation to Radio and Television of Slovakia, a public media broadcaster. It is to this law and its implications that I now turn
b. Public media broadcaster
Radio and Television of Slovakia (hereinafter RTVS), founded on January 1, 2011, used to be one of the most popular and most trusted broadcasters in Slovakia. Despite this free public media broadcaster finding favour among the general public, members of the current government, and indeed Prime Minister Fico, did not share the same level of enthusiasm in relation to RTVS.
Fico effectively accused the broadcaster of being biased when he said that RTVS was not capable of “[being] objectively objective because it is in dispute with the Slovak government,” which, in his view, amounted to a violation of the fundamental human right to be objectively informed
This statement can be, and indeed was, contested.8 However, RTVS no longer provides any information to the Slovak population, as it does not exist in its original form anymore In June 2024, the Slovak Parliament passed a law to abolish RTVS, effectively allowing the then- director general to be laid off
without proper cause, and the institution was renamed as Slovak Television and Radio (hereinafter STVR).
The law against RTVS is extremely problematic and controversial, especially given that RTVS was known for its political news and journalistic investigations into political figures. The law has attracted a great amount of criticism, both from within the country and from abroad. Former director general of RTVS, Ľuboš Machaj, described the day the law was passed as a “black day” for Slovakia
Members of the general public organised public protests across the country, expressing their opposition to the law, and members of the political opposition, as well as the then-president Zuzana Čaputová, expressed their profound concerns regarding the law against RTVS.
Such concerns are justified. The effect of the law is essentially to stifle an independent public media outlet, limiting media freedom, as the law replaces a free institution with a politically controlled one The law enables the government to exercise direct control and supervision of the new STVR, by allowingfor a new, radically different process of creation of the institution’s oversight board
The oversight board, called the Council, consists of nine members, as it did before. Four of the members shall be nominated by the Minister for Culture. The current Minister for Culture is Martina Šimkovičová, a nominee of the far-right Slovak National Party (SNS). Šimkovičová is openly pro-Russian and has helped anti-system parties and spread pro-Russian propaganda and homophobic statutes both in the past and at present The remaining five members of the Council are elected by the Parliament, controlled by the Smer-led coalition, and based on the proposal of the Parliament Committee for Culture and Media STVR shall also have a director general, elected by the Council.
Given this new process of creation of STVR’s oversight board, the government can directly exercise political control of what is supposed to be an independent public media broadcaster, ensuring that the broadcaster stays loyal to the populist government coalition. As explored above, private media broadcasters have also been directly threatened and criticised and have, as a result, receded from opposing the government
These direct attacks on both types of media undoubtedly amount to an attack on democracy, as independent and pluralistic media is essential for a democracy to exist Fico and his populist government, however, need media monopoly and repression, among other things, to remain in power, as “populists do not provide empirical evidence, data, or any kind of source to support their claims. They simply claim that they are the only true representatives of the people, their interests, and opinions.”
It can be observed from this that anti-pluralism and denying the legitimacy of opposing thought are key features of populism Accordingly, Fico’s practices in relation to the media should not come as a surprise. They are part of a bigger picture of governmental changes, the most serious of which is the amendment to the Criminal Code.
3. Amendment to the Criminal Code
The amendment to the Criminal Code, controversially enforced in an accelerated legislative procedure and unsuccessfully challenged on the grounds of constitutionality by the President, has been described as “a step in the wrong direction,” attracting a significant amount of criticism The amendment represents another example of the government’s undermining of democracy and of the rule of law, for a number of reasons. What I consider to be the three most significant reasons will be explained below.
Firstly, the amendment abolishes the Office of the Special Prosecutor As the office was responsible for combatting organised crime and corruption, its abolition is a step in the wrong direction. Secondly, the amendment abolishes the National Criminal Agency (NAKA), reducing the State’s ability to investigate and punish corruption Together, these actions partially destroy the system of checks and balances, which is vital in a democracy Thirdly and equally significantly, notable changes were made to a number of crimes in that their charges were reduced and the amount/level of damages, if recoverable, were
increased. The statute of limitations for rape has been shortened
Various domestic and international organisations, including the European Commission and the European Parliament, have also warned about the impact of the aforementioned dramatic changes on the rule of law. This amendment represents yet another example of democratic backsliding in Slovakia I argue that, taken together with the attack on media, the amendment to the Criminal Code can be viewed as an early sign of democratic regression in the country, bringing Slovakia yet another step closer to its southern neighbour, Hungary What lessons, then, if any, can Slovakia learn from Ireland?
4 Lessons to be learnt from Ireland?
Taking a closer look at defamation laws in both countries, what transpires is that Slovakia’s defamation laws are much stricter than Ireland’s (section 35 of the Defamation Act 2009 abolished the common law offence of libel). Defamation is a crime under Slovak law, punishable by up to eight years in prison.19 The fact that journalists in Slovakia could face a criminal conviction upon the publication of
“false information about another that is capable of significantly jeopardising his reputation among fellow citizens, harming him in his employment or business, disrupting his family relationships or causing him other serious harm,”
makes the government’s accusations of and actions against the media all the more unfounded. A potential criminal conviction has perhaps an unduly chilling effect on journalists, compelling them to report true, objective information.
I argue that instead of dismantling independent media and restricting them by means of sanctions and threats, Slovakia should follow the Irish example and provide comprehensive legislative protection of legitimate, public-interest journalism
Inspiration can be taken from one such protection of legitimate journalism in Irish defamation law, namely the ethical journalism defence of fair and reasonable publication This has proved difficult to operate in practice, however.
Another useful protection for Slovakia to consider adopting into its laws is the defence of qualified privilege This defence, although not without difficulties, protects the publisher when the defamatory statement cannot be proved to be true, effectively protecting the publication of statements that can be objectively false or whose truth cannot be proved The defence only applies where a publisher has a duty to publish something and the person who receives it has a reciprocal interest in receiving it – a somewhat broad formula
It is imperative that Slovakia adopt explicit protections in relation to real-time media, protecting statements made by any person throughout the duration of a live program Having a live broadcasting defence would help avoid accusations against journalists of something potentially defamatory they said during a live program, where it can be said that they cannot have full control over what they are saying In this context, some statements may be made during a temporary lapse of attention or unintentionally The live broadcast defence has been proposed in Ireland in the Defamation (Amendment) Bill 2024, currently in its third stage before the Seanad, following the review of the arguably outdated Act from 2009.
Conclusion
I have shown above why I think the government’s actions against the media, as well as the amendment to the Criminal Code, are signs of democratic backsliding, setting Slovakia on a path towards autocratisation Protections need to be put in place for public-interest journalism, and Slovakia can find inspiration regarding such protections in the Irish jurisdiction However, more needs to be done to save
democracy in Slovakia, starting with the enforceability of the law and the independence of courts.
In my view, the only hope left for Slovakia, if it wants to win the war on democracy coming from within the state, is unified political opposition and organised social resistance. Under Article 32 of the Slovak Constitution,
“[c]itizens have the right to resist anyone who would abolish the democratic order of fundamental human rights and freedoms set in this Constitution, if the activities of constitutional authorities and the effective application of legal means are restrained.”
At present, since the coalition is using violent and drastic means to remain in power, it is all the more vital that this right to resist anyone who would eliminate the democratic order be exercised through democratic and non-violent means Levitsky and Ziblatt posit that democratic backsliding starts at the voting station
They argue that modern democracies rarely end forcefully, through violent means such as coups d’état. Rather, their demise occurs gradually, once populist extremist leaders and hyper- nationalists are elected through the voice of the people. Hence the start of democratic erosion at the ballot box. I suggest the voting station is where Slovakia’s fight for democracy starts. In the words of Levitsky and Ziblatt, it is essential that citizens “[rise] to meet the great democratic crises of the past” and “[overcome] their own deep-seated divisions to avert breakdown.”
Environmental Restorative Justice: Re-Thinking Ireland’s Approach to Environmental Damage
by Cian Goulding
INTRODUCTION
While the criminal justice system offers a deterrent and, in some cases, punishment for prescribed harms done in society, it does not sufficiently address many of the practical issues caused by damaging behaviour. These issues often occur in areas that are not traditionally part of, or completely prosecuted, under criminal law On the issue of the environment, criminal law has been notoriously ineffective in deterring or repairing environmental damage Environmental Restorative Justice (ERJ) provides a new lens through which environmental harm, beyond the restrictive definition of crime, can be accounted for. This article outlines methods in which ERJ can be introduced to the Irish legal system, and argues that ERJ can repair social, economic and ecological harm more effectively than traditional legal methods.
ERJ involves acknowledging the wide array of harms which can be done to individuals, society, and the environment by actions which do not fit within our legal system’s idea of ‘crime’ The essential question to be asked here is ‘who is justice for?’ As the criminal legal system focuses its attention on offenders, victims are often left unrepresented in the course of justice. Moreover, only certain victims have access to this justice - consideration is rarely given to humans and communities who are indirectly affected, human-run businesses and ways of life, non-human animals, plant life, natural resources, and natural features, such as rivers and lakes. ERJ can also fulfil a human-rights-based approach - the United Nations Environment Programme has stated that environmental offenders are both committing harms against nature and violating human rights
ENVIRONMENTAL CRIMINAL JUSTICE
The Irish criminal legal system is arguably ineffective in addressing the impact of environmental harm. Most legislation, including parts of the Waste Management Act 1996, focuses on fines and prison time. It has
pbeen noted that Ireland, in particular, has low sanctions in respect of environmental damage. For example, pollution by three companies to a river, which severely damaged a ‘sensitive habitat’, yielded less than €20,000 in total damages, while a case prosecuted by the Environmental Protection Agency resulted in a fine of a mere €500. As Coffee notes, the imposition of fines merely sets a price on criminal damage and has no effect in making up for the damage done.
However, there are existing examples of how ERJ can be applied in the domestic system. Section 34 of the Waste Management Act provides some restorative remedies. In cases such as John Ronan & Others v Clean Build & Others, companies and directors of those companies have been found to be in breach of environmental legislation, and have been given ‘clean-up notices’, imposing the cost of removing waste and pollution on offenders. This can put a stop to ongoing pollution, but can not account for longlasting damage done to natural features or ecosystems.
The 2024 Directive on Protection of the Environment through Criminal Law goes some way in expanding the scope of crime to further environmental harms, such as illegal trading in timber or wildlife. It also takes a step towards restorative justice, suggesting the imposition of an obligation to restore the environment after damage is done, if said damage is reversible It also labels the voluntary restoration of the environment as a mitigating factor in criminal offences These provisions are not obligatory for Member States, however, and the lack of action from most EU nations in this area suggests that these principles will not be applied widely. Furthermore, Ireland has opted out of this Directive and has no
rduty to implement these progressive criminal sanctions
ENVIRONMENTAL RESTORATIVE JUSTICE THROUGH CONFERENCING
While ERJ can take many shapes, conferencing has become an established method in nations such as Australia and New Zealand, and is an example of the creative ways in which justice can be found outside the criminal legal system. Approaches to conferencing vary, but in most cases, it involves dialogue between all parties involved in environmental harm, including perpetrators, victims, community representatives, prosecutors, and experts. This process may take place inside a traditional courtroom with the oversight of a judge, or, in more recent instances, outside of a formal legal setting.
Legislation in New Zealand provides for a ‘back-end’ model of ERJ, in which the court adjourns proceedings to allow conferencing to take place This system consists of a dialogue between all parties, allowing offenders to admit wrongdoing and make commitments to repairing harm done, and giving victims the opportunity to make known their own views and solutions It also enables the production of a ‘conference outcome plan’, which is contributed to by all parties involved
A ‘front-end’ model, established without legislation by local regulatory authorities, employs similar features but takes place entirely outside of the courtroom In this model, local authorities are also key players in the process, overseeing proceedings and evaluating the efficacy of the conference. In all situations, if participants are not actively engaged or the conference is unproductive, the case may be returned to court
Conferencing does have limits It requires genuine engagement from all sides, and there are no guarantees of a satisfactory outcome. However, the system can provide a more effective remedy for cases
where environmental harm has been caused, and damage has been done to individuals or communities, but where the criminal legal system is unlikely to have a meaningful impact - for example, where only insignificant fines may be applied. By bringing the various parties together, it can provide closure for victims and communities, while allowing offenders to understand the concerns of the individuals they have harmed and to contribute to repairing that harm
Changes to the methods in which environmental damage is dealt with may lead to more practical solutions, but as dialogue advances, can contribute to wider cultural change More informal legal systems can contribute to compassion-driven cultures, allowing restorative processes which can be beneficial to all parties In contrast, it appears that the culture of the modern legal system may act as a barrier to expanding restorative justice practices For example, the placing of individual responsibility over that of the collective, or on compensation over discourse, is counterproductive to achieving complete justice among all parties. By creating this discourse, conferencing can change the wider approach to environmental justice and create vital relationships between offenders and victims.
CONCLUSION
ERJ can offer an alternative approach by accommodating all parties which experience harm in cases of environmental damage - including individuals, communities, wildlife, and ecosystems ERJ can reduce the impact of past actions, but can also play a role in preventing future damage by developing relationships between the vast number of actors in this area, from corporations to local communities Initiatives such as conferencing provide a method through which individuals can truly take responsibility for the harm they have caused and work with victims towards repairing that harm With rapid economic growth and the constant development of housing and data centres, it may be submitted that
Ireland needs effective dialogue between all sections of society to ensure that environmental damage cannot be allowed to take place. ERJ and conferencing allow for the restoration of the environment where harm is already done, but it serves a preventative function in holding individuals accountable and fostering dialogue
