Empathy: The Key to a Justice System that Heals

Two decades earlier, on the other side of the world, post-Soviet Georgia had also attempted ambitious police reforms, following the Rose Revolution of 2003, which saw the ousting of the former Soviet-era president. 

Those radical changes of 2004 spurred the justice system to combat a persistent high crime rate – one of the highest in former Soviet countries – with the punitive United States model and Italian anti-mafia legislation as inspiration.

On the positive side, corrupt police officers were wiped out following the firing of most of the force. In turn, fewer agents were hired, but paid considerably more and offered better training and equipment. That discouraged organized criminals who had been empowered by corruption and helped a fearful society rebuild trust in the police.

However, despite paving the way for an almost crime-free country, stricter laws and a more efficient police force caused prison populations to skyrocket. Numerous human rights violations followed.

“The penitentiary system was not ready to accept that many people, so it ended up with overcrowded, dirty prisons with high prevalence of tuberculosis and hepatitis,” says George Tugushi, international human rights lawyer from Georgia, who watched the reform process closely and later served as Georgia's human rights ombudsman from 2009-2012.

His compatriot Leila Marshania, a rule of law and human rights expert, also witnessed the reforms as an independent consultant for the European Union.

“The reforms of the justice system were absolutely necessary, but it would have been better to have a more humane approach rather than a punitive approach,” she stresses. In her view, the initiative was only “instrumental” and in the interest of the “economic development of the country.”

According to Tugushi, “any reform... should never forget about human dignity and especially respect for human rights, but as it appeared in practice, it’s not always that easy, and governments usually fail to balance the respect for human rights and implementing the reform.”

“To me, human dignity has to be at the heart of everything, ...but it’s never at the center really; it’s just nice words,” Marshania laments. In the aftermath of 2004, “every person in Georgia either had a family member, a friend or an acquaintance incarcerated.”

In the following years, increasing pressure from Western countries and international organizations forced the Georgian authorities to finally envisage alternatives to the zero-tolerance policy. The goal was to avoid imprisonment while still holding offenders accountable for their crimes via “diversion programs.”

“Criminal justice became much more liberal, an amnesty law was initiated and sometimes thousands left penitentiaries [in a single day],” says Tugushi.” Now, the Georgian prison population is around half of what it was, “...but there are allegations that corruption is coming back.”

The overall success of the Georgian experience, with its ups and downs, inspired Iryna Shyba across the Black Sea in Ukraine to pursue a career in law centered on restorative justice. This means allowing both victims and offenders a chance to hear each other out, rather than just impose punishment.

“People say that they want revenge and punishment, but this is something they often say but not necessarily need or not necessarily helps them overcome the conflict or the trauma,” says Shyba.

Serving as an executive director for the non-governmental organization DEJURE Foundation, she is optimistic about a “changing attitude” towards justice in Ukraine.

“I think we have made a significant shift over the last 20 years, because from a totally punitive post-communist system, where the only goal was to convict and punish the criminal, we are now talking more about satisfaction of the victim and restoration of the harm.” 

Yet, the focus remains on punishment. 

Based in the capital Kyiv, the DEJURE Foundation is struggling to deepen judicial reform.

“What we have seen in our work with mediators and restorative justice programs is that actually people often need something totally different: they need to feel safe, protected, and hear ‘I’m sorry.’ ...They often need to face this offender and learn why it happened to them,” Shyba adds.

Like in Georgia, their projects include “child-friendly justice” programs, to make sure that children who committed a crime for the first time take responsibility for their actions, but without going to prison. Instead, a meeting is arranged with the person they offended, so they try to reconcile and repair the harm.

Projects of the like are emerging to support adult offenders too, helping them find jobs and learn new skills.

“We need to distinguish the action from the person,” concludes Shyba. “Everyone can make a mistake, I think everyone in their life has made some wrong decisions,” especially in a country marred by economic hardship.

In the heart of Europe, Czechia faces similar challenges – and Petra Masopust knows that well.

“You can see relics of the past in the law and the process,” says Masopust, who is the chairperson of the Czech Institute for Restorative Justice.

She emphasizes how important it is that those affected by the crime participate in the solution, and that the offender genuinely accepts their responsibility as they both start a dialog under their free consent in a secure environment.

Such interaction does not exist in most criminal procedures, which in many cases are far from being the “healing experiences” Masopust says they should be.

Coming from a family of lawyers where conversations about justice were always present, she set out to bring a new, empathetic, and restorative mindset shift to her country’s very rigid criminal justice system. Despite a lack of budget and influence in the system, she did not give up and succeeded in introducing restorative justice into Czech law schools, while involving all the key players to build towards a larger transformation.

Rather than pushing down legislative changes from above, Masopust’s strategy consists in engaging legal practitioners such as lawyers, judges, legislators, prison workers, and parole officers in a hands-on experience where they can imagine restorative justice together.
 
“The purpose of the criminal proceedings is still to find and punish the offender, but it should aim at fulfilling the needs of the victims and the possible redress of the harm done, while supporting the offender in accepting their responsibility,” Masopust explains.

“It’s difficult for me to accept and understand that we have a system that is actually not helping the people, so I would like justice to be a process that does help the people.”

Similar to Grewal’s “culture eating policy for breakfast,” Tugushi assures that “it’s very easy to get rid of the law,” but after 70 years in the Soviet Union, “it takes ages to change the mentality of people... and make them understand that the system can function in a different way while still letting you enjoy your life.”