In June Santiago de Compostela in Spain was host to the Iberoamerican Congress of Therapeutic Jurisprudence. Joaquin Lopez reflects on an energising two days…
Although I knew of the existence of the Iberoamerican Association of Therapeutic Jurisprudence/La Asociación Iberoamericana de Justicia Terapéutica (AITJ), I attended the Congress knowing none of its 1000 members. Over two days, I had the pleasure and the luck to meet wonderful and admirable people all with a strong commitment to improving the wellbeing of people who are in contact with the law through an application of Therapeutic Jurisprudence.
Having been chosen as one of the reporters of the Congress, I attended the eight thematics and listened to thirty speakers. Here I offer a brief and weak echo of what was said over these intense two days…
The inauguration of the congress was celebrated with great pomp, in the presence of politicians and community leaders, who have called for greater efficiency of justice, more human, hoping that the virtues of the spiritual quest aroused by the pilgrimage in Santiago will be resonant with Therapeutic Jurisprudence (TJ).
The astonishing President of the AITJ, Francisca Fariña, who also organized the European TJ Congress the previous week in San Sebastian, in southern Spain, opened the Congress in such as way so that listeners for whom TJ was a new concept could get the most benefit from the two days to come. David Wexler began by introducing TJ and focusing on the scope of TJ paradigm that goes beyond procedural justice (PJ). He drew on the concepts of “therapeutic application of the law” (TAL) and the “therapeutic design of the law” (TDL). He underlined that TJ uses various disciplines such as psychology, criminology and social work, to go towards a richer judicial dialogue and promote greater openness mind judges who must leave the inflexible framework of the law.
The second presentation was on TJ and juveniles. This subject was in turn treated by two university professors and a magistrate:
- Isabel Espin Alba, civil law professor at the University of Santiago de Compostela, stressed the need to integrate transversely TJ in the academic training both in psychology and in law.
- Monica Solange De Martino, professor of the University of the Republic of Uruguay (Uruguay) invited us to go beyond formal justice towards a dynamic justice in which the possibilities of interventions condition “bottle”, “wine” and the winegrower (legislator), following the famous Wexler metaphor. The TJ in this case comes to humanize the formal justice and to revitalize it by its reflection.
- Juan Carlos Fernandez Aladro, prosecutor of Pontevedra (Spain), presented the latest legal developments concerning the rights of juveniles, stating the notion of “best interests of the child” (Article 2 of the OL 8/2015 of July 22nd, 2015) or the “right to be heard and listened” (ibid. art. 9) or “rights and duties of the child” (OL 26/2015 of July 28th, 2015), concepts that are congruent with TJ according to him, while acknowledging and regretting that “we produce some new wine in old amphora“.
The third theme of the day was “TJ as response to school-based harassment situations.” Three university teachers and a mediator of justice brought us reflection on this surprising topic:
- Esther Pillado, procedural law professor at the University of Vigo (Spain) and President of the Spanish Therapeutic Jurisprudence Association, leans into the penal law 5/2000 of January 12th, 2000 about juvenile penal responsibility, and the notion of “the best interests of the juvenile” (cf supra), to prioritize mediation, which is possible for minor offences without gravity nor excessive violence, reminding that mediation aimed at reconciliation and reparation between parties.
- Mercedes Novo, Lecturer in Social Psychology at the University of Santiago de Compostela and committee member of the AITJ, exposed to us how TJ can be a Kuhn paradigm, and insist on the fact that TJ should move more toward restorative justice programs and cognitive-behavioral techniques.
- Milagros Otero, Professor of philosophy of law at the University of Santiago de Compostela, highlighted the fact that the school’s harassment cannot be solved without an solving together the problems of the children involved.
- Blanca Otero, mediator in the intra judicial service mediation in Vigo, pointed the preventive work in an educational center, as TJ strategy, as is the response to victims and the work to rehabilitate the stalker.
The fourth topic carried “the application of TJ in specialized courts”, approached by three researchers also having secondary functions:
- Sofia Cobos, researcher at the National Institute of Penal Sciences of Mexico City (Mexico) and attached to the Department of Prison Administration of Mexico, informed us that the latest national law of enforcement of sentences textually deals with TJ in three different sections, in chapter VIII, regretting that the Mexican legislator hasn’t given a definition of TJ.
- Catalina Droppelmann, researcher at the Institute of Criminology at Cambridge University (England), about a current exploratory project on release on parole in Chile, conducted with Mrs. C. Villagra Pincheira, illustrated how the trial eligibility for parole is anti-TJ (arbitrary, unfair, invisibilising the excluded, not incorporating the intrinsic motivations of convicts who have managed to modify their own behavior, not promoting the construction of a new identity … ) and called for a revision of this law.
- Maria S. Oyhamburu, magistrate in Argentina, discussed a community measures program regarding the deprivation of the liberty of juveniles conducted in the municipality of Florencio Varela in the Buenos Aires Province. She discussed the co-existence of TJ-friendly elements (the role played by the actors of the law, the purpose and the pursued objectives) and “unfriendly” elements (the law and the procedural law), which reduced effectiveness and impacts.
A fifth presentation on “TJ from the perspective of the victim of the offense” was carried by two academics and a solicitor:
- Pablo Grande Seara, professor under contract at the University of Vigo, reminded us that the victim of the offence has elementary rights to be addressed in a simple and accessible language and to be protected from their aggressor. And for the juvenile or people with disabilities the right to be recorded during their testimony, or to be assisted by a psychologist during their hearing. But then, he hurried to underline that all these TJ elements often don’t apply because of a lack of funding which results in secondary victimization by the judicial system itself.
- Maria D. Fernandez Fustes, also teacher under contract to the University of Vigo, returned to “the superior interest of the juvenile” and insists on the mediation for the juvenile victims.
- Izaskun Porres, jurist and mediator in Spanish Basque Country, ended the first day on the plight of women victims of domestic violence whose ever-growing modes of fast conflict resolutions have anti-TJ effects and produce secondary victimization characteristics.
The second day began with the theme “Criminal Justice, a look from TJ” discussed by three judges:
- Luis E. Osuna Sanchez, magistrate of the Fiscal and Administrative federal court of Morelos, Mexico, also vice chairman of the AITJ, insisted that TJ is not opposed to traditional justice but complete its. TJ offers a multidisciplinary perspective, tools of which allow a finer and more complete analysis of the law, with for compass, emotional well-being of the defendant. The challenge is to distinguish what is TJ and anti-TJ, which requires empirical research work.
- Pura Caaveiro Ameneiro, instruction judge in Coruña (Galicia, Spain) and coordinator of the Neutral Point of Promotion of Mediation (PNPM) in Galicia, talks about the bridges between TJ and problem-solving courts. Quoting Spanish magistrate Pascual Ortuño, she told us that TJ constitutes a standard for the magisterial function: “the impact of the anti-therapeutic or therapeutic on the sensitive areas affecting human dignity represents an object of ethical research for the exercise of our jurisdictional function“
- Ignacio J. Subijana Zunzunegui, President of the Court of justice of Guipuscoa (Basque Country, Spain) disucssed how TJ is manifested through the example of the treatment of mental illness: because the social defense can exclude or include, when it excludes the offender it is de facto anti-therapeutic; a permanent custody model doesn’t admit a therapeutic virtue. Indeed, in a secure system, there is no interaction and even less with another system; while in a more open model, the multidisciplinary confers on the interaction. In this TJ is an interdisciplinary model of justice, rehabilitative and protective. Only through collaborative strategies can we generate a collaborative model. For instance, with another area such as public health, we achieve amplify a therapeutic effect.
We followed with a theme on “intervention programs based on TJ” presented by two academics and a social worker:
- Francisco J. Rodriguez Diaz, senior lecturer in psychology at the University of Oviedo and Beatrice Perez Sanchez, researcher in legal psychology at the University of Frontera (Chile), both presented an alternative program to the Prison, developed in Villabona (Asturias, Spain) from the 1992s. It is a “therapeutic and educational units” (UTE) as prison treatment. This interactionist model program based on the personality is centered to the everyday life concrete conduct. The integration to the program is made by an agreement with the condemned who makes himself the request to integrate the UTE, which is hermetic to the prison but within its wall. The main motto to be respected are the co-responsibility, the co-management and confrontation, then relatedly, hygiene and care of the environment, education, health, family … While the classic prison treatment focuses on punishment, the UTE is focused on rehabilitation of the convicted person. The program gets a recidivism rate of around 20% within three years (n = 574 followed for eight years after the release).
- Duarte Crestar Pena, manager of an educational community center in the Galician province, presented us an extrajudicial or judicial intervention program for youth, including educational action weekend at home of host family.
- Ramon Fernandez Arce, Professor of legal and forensic psychology at the University of Santiago de Compostela and editor of the European Journal of Psychology Applied to Legal Context (EJPALC) stressed the importance of doing work with domestic violence. He lamented that mediation under this offense is legally banned in Spain. Yet, it would allow in a substitute but nonsystematic way, a better coverage and adhesion of this type of offender to a cognitive-behavioral program, about which we know that they produce significant positive results, whenever the level of risk which presents the offender is adequate to the appropriate coverage treatment; the opposite being anti-TJ.
An eighth theme concerning “the mediation, a tool of TJ” was treated by two academics and a magistrate:
- Fernando Vazquez-Portomeñe Seijas, director of the Institute of Criminology of the University of Santiago de Compostela, echoing the remarks previously made regarding mediation – whereas mediation engages a “restorative” dialogue with the offender, the criminal justice system fails. Yet, according to the evidence-based results of the research, the domestic violence offender who pass through the mediation reoffend less.
- Maité Mendez Valdivia, lecturer in psychology of the University of Oviedo specified that with the mediation, the principle of adherence which emanates from the own will excludes the psychological reactance, which rejects any exogenous decision. The therapeutic dimensions of the mediation reside in the repair, the reduction of the obstacles, the resolution of conflicts, the management and the prevention of the conflict, including the emotional processing.
- Julio Diaz Casales, magistrate in the Court of the administrative dispute of the superior Tribunal of Galicia, shares the view that mediation is a form of participation of the civil society to the administration of the justice. Drawing a parallel with the chess where the players involved are neutral and know all the rules of the game and cannot change it along the way, he stressed on the fact that the Administration plays by having big advantages (creation and enactment of the law, the resort comes in front of the Administration and not the reverse, etc….) which makes lower the applicant’s position. It recalls that the article 77.1 of the Spanish Law 29/1998 on administrative disputes, sees the possibility of using mediation to end a dispute. To date, several Spanish tribunals have developed transactional methods of conflict resolution (Canary Islands, in Valdecañas Extremadura, Murcia …) on labor, social security, health, education, family protection… Citing at first Henry Marsh, a British neurosurgeon, he underlines that mediation ideally leads to forgiveness, then he mentioned a magistrate colleague: “mediation is an alternative justice, not an alternative to justice” (Maria C. Garcia Vicario).
To end this day, the last presentation carried on ” TJ in family matters” around two jurists and an academic:
- Fernando Hernandez Espino, directive committee member of the Spanish association of lawyers in family law, recognizes that TJ contributes to the well-being of people who are engaged in a divorce procedure, what shows itself by the pacification, depersonalization of proceedings of divorce and the right emotion monitoring for the benefit of an overflowing of emotion. In divorce, the judge has to be more understandable and even improvise measures if necessary. Similarly, decisions must be written in common terms. Also, it is especially necessary to avoid last-minute agreements before entering in the Law court for the hearing, which reveal to be anti-TJ.
- Begoña Acha Barral, Ministerial Justice auxiliary to the Court of Vigo, recognized that generally there is a lack of knowledge around mediation. She recalls the importance of information for the general public, a proposal made by the Spanish Judiciary itself. She also notes that the legal agendas of its actors do not coincide with those of the mediation operators, so that in the end, the citizen does not choose it.
- Francisca Fariña, legal psychology professor at the University of Vigo and President of AITJ, finished this theme with reference to TJ renewing the legal paradigm (Stobbs, 2013), the core correctional practice about emotions that, for instance, impacts the area of family law, where “the bottle” could be more TJ-friendly regarding divorce. Therefore, she reminds how it is urgent to humanize the legal aspects and the psychological one in turn of divorce, but insists on what is urgent using TJ tools: such as mediation, for which we must continue educational efforts; the pacification, which cannot exist without the expression of forgiveness (remorse) another positive highly TJ tool ; the right emotions necessary to co-parenting in the case of divorce… She evokes as well the economic aspect related to TJ and the fact that it is not necessarily expensive to apply TJ tools, as know how to put the good linguistic forms, get attention, listening to the interlocutor which is representative of good “wine”. She agreed that there is “liquid” more expensive but more profitable finally for society. For example, is the case with the creation of the new function of the co-parenting coordinator that will pacify relations in conflict divorces and ultimately achieve the sense of co-parenting, a TJ process ultimately.
This intense congress ended on a vibrating and touching tribute to Mrs Antonia Rodriguez, in the presence of her daughter, husband and friends. She was a brilliant lawyer, tireless TJ ambassador and a long life member of the AITJ.
Joaquin Lopez is currently a PH.D candidate at the Reims University of Champagne Ardennes under the supervision of Professor Martine Herzog-Evans in which he is using interactionist and sociolinguistic studies to empirically report legitimacy of justice/procedural justice/therapeutic jurisprudence. His research concentrates on the daily interaction of a sentencing judge (“le juge de l’application des peines”) with the probationers s/he has to manage.
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