The transition from an inquisitorial to an adversarial criminal justice system: An opportunity for restorative justice in Chile

The chapter aims to analyse the differences in the application of restorative justice in Latin America and particularly in Chile after 20 years of transition from an inquisitorial criminal justice process to an adversarial one. During this time, some countries made penal mediation a normative part of the penal reform process, along with other more communitarian penal conflict management mechanisms as a way to put the opportunity principle into practice, granting prosecutors the freedom to take decisions on penal action. By contrast, in other countries these restorative mechanisms were not regulated, producing highly diverse effects. For this study a dogmatic and qualitative methodology was used, with a descriptive and exploratory design. Our conclusion is that in Latin American countries where restorative mechanisms were regulated by norms and in some cases the Constitution, their development and the acceptance of its operators was much higher, with a better perception of the people who took part in them vis-a-vis justice. By contrast, in other countries where no full regulation existed and these mechanisms only operated as pilot programmes, they tended to disappear after only developing alternative options and abbreviated or simplified trials, without using restorative methods, but rather with quick and superficial negotiations between the prosecutor and the defender, with little victim participation and no fulfilment of the goals and quality intended in their design. These outlets focused on judicial decongestion, which the parties involved to no understand and the general public considers negligence by the state apparatus faced with citizen safety, granting no effective solution to penal conflicts.