Constructieve vergelding revisited: De grondslag van de straf vanuit herstelrechtelijk perspectief

Abstract

Is the concept of ‘retribution’ compatible with restorative justice? Starting from the perspective that retribution is an imperative given and that restorative justice should be a preferent option in copying with crime, the concept of retribution needs to be redesigned. ‘Doing justice’ relating to both procedural and substantial aspect of social censure, rethinking retribution needs to take into account the hypersensitive nature and complexity of modern society. Apparently incompatible interests need to be reconciled, paying tribute to the citizenship of both the victim and the perpetrator. Notwithstanding censure to be in place, implying the infliction of ‘pain’, the aim must lie in a reconstruction of civil relationships affirming the victim and the perpetrator to be part of the community. Standards applied must reflect objectivity, implying proportionate punishment, with a preference towards restorative justice because of the more subsidiary nature. Thus, retribution notwithstanding the imperative and painful nature of retribution, the execution should pursue the reconstruction of (civil) relationships