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Restorative Justice Developments in Luxembourg
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Luxembourg's use of restorative justice processes began in 1997 when it started a victim offender mediation pilot project. In this article, Paul Schroeder, from the Centre de Médiation in Luxembourg, sketches the development of victim offender mediation in the country.
1. Introduction
The present article presents a short overview about restorative justice practices in Luxembourg. While victim-offender mediation (VOM) has been developing constantly over recent years, other restorative justice practices have emerged more slowly. The only notable exception is peer mediation in secondary schools.
2. Victim-offender mediation
a.) History
The idea of introducing victim-offender mediation started to emerge from the middle of the 1990s. In 1995, the prosecutors of the judicial districts of Luxembourg and Diekirch (1) first mentioned the possibility to formally introduce VOM in the penal procedure. Their main reason to promote VOM was to reduce the number of cases where no action was taken by the prosecution. The prosecutor of the district of Luxembourg, M. Robert Biever, was convinced that the lack of action is difficult to accept for the victim and public opinion while encouraging the author to re-offend. He considered that it is not necessary that every incivility receive a penal sanction, but that an offence where there is no action taken by the prosecution will have harmful consequences for the victim and the offender, especially if the number of dismissed cases is too high and concern facts that constitute a real breach of the public order (2).
At the same time, the head of the department for legal and social information of the National Youth Service, M. Jos Bewer, was confronted with a growing number of requests for information from young people who encountered real social and relational problems that often resulted in the breaking-off of social and family ties. In many cases, a judicial solution was not the appropriate answer to the problem. Therefore, M. Bewer was looking for other means to help his young applicants. He believed that mediation would be the most appropriate response to help resolve the problems between the young people and their parents or the society. Concerning young offenders, the mediation process ensures that they can assume their responsibilities by facing their victims. For the later, mediation has the advantage to understand what happened and permits quick reparation of their moral or material damage. Above all, the mediation process should (re-)establish the communication between the persons involved, so that their future relation is not harmed in a lasting way.
The first steps on the field of restorative justice were undertaken in September 1997. M. Jos Bewer was able to gain the support of the prosecutor from the district of Luxembourg, M. Robert Biever, and of the deputy prosecutor in charge of the juvenile protection department, Mme Mariette Goniva. They agreed to start a pilot project for mediation with juveniles. A mediation centre (Centre de Médiation a.s.b.l.) was established under the form of a non-profit organisation.
After the first encouraging experiences in the field of VOM with juvenile offenders, the public prosecutors of the two judicial districts of the Grand Duchy suggested the formal introduction of VOM for adult offenders in the code of criminal procedure. The Minister of Justice, on 18th of February 1999, submitted a bill concerning penal mediation to the parliament. Only two months later, the 21st of April 1999, the bill was discussed and voted on by the parliamentarians.
b.) Victim-offender mediation with juveniles
At the moment, VOM with juvenile offenders is only offered in the judicial district of Luxembourg and carried out by a single mediation centre. There is no explicit reference to VOM with juveniles in Luxembourg law. The magistrates of the juvenile protection department of the prosecutor’s office will recommend that the young offender contact the mediation centre. The recommendation of the prosecuting magistrate results from his power to decide on the appropriateness of the proceedings. On one hand, the lack of a legal basis permits a rather flexible use of mediation without any restrictions concerning the referrals. On the other, mediation is not offered in all the judicial districts, which results in an unequal treatment of offenders depending on where they committed the offence. Even though, there are no formal recommendations for referrals, VOM with juveniles remains restricted in general to minor offences.
After almost five years of experience with VOM with juveniles in Luxembourg, one can say that the results are encouraging, considering that participants managed to find a mutually acceptable arrangement in about 70 % of cases. The time has come to extend VOM with juveniles over the whole country, in order to give the opportunity to all young offender and their victims to benefit from restorative justice practices.
c.) Victim-offender mediation with adults
VOM with adults is the only mediation practice in Luxembourg that is governed by a specific law (3). The law gives the possibility to the public prosecutor to refer a case to mediation if such a measure permits the reparation of the damage caused to the victim, or puts to an end the trouble resulting from the offence, or contributes to the reintegration of the offender. Luxembourg’s law is largely inspired by the French law of 1993.
According to the preamble of the parliamentary bill, the law aims is to give a supplementary instrument to the prosecution to deal with petty crimes, in order to reduce the number of cases where no action was taken. The bill considers that mediation presents the following advantages:
The law says furthermore that the mediator must inform the prosecutor of the outcome of the mediation at the latest eight months after the referral. Under exceptional circumstances, the mission may be extended for four months.
Mediators in penal matters must be accredited by the Ministry of Justice. The law requires that the mediator satisfy the conditions of respectability, competence, training, independence and impartiality. Unfortunately, the law does not specify what the training requirements are. This leads inevitably to major differences in the qualifications of the mediators. While some mediators set standards of quality for themselves, others have followed no training at all. There is no doubt that the lack of qualification criteria is harmful to the credibility of mediation in general and to the reputation of the mediator. Criteria of quality and qualification which are serious, controllable and controlled are simply essential if mediation should become a real instrument of restorative justice in Luxembourg.
VOM with adult offenders is offered in the whole country since it has been introduced in the code of criminal procedure. Most mediators who have been accredited are lawyers. The "Centre de Médiation" is the only NGO working in the field of VOM. All the mediators working for the centre have been accredited on an individual basis. They come from different professional backgrounds (social-workers, psychologists, educators, legal professions, etc.) and they all received training in mediation.
Statistics concerning the use and the results of penal mediation are difficult to obtain. For 2004, the number of cases referred to mediation can be estimated at about 200. Compared to the impressive number of complaints lodged every year (about 40.000), one must admit that penal mediation remains a marginal instrument of dispute resolution. Of course, this conclusion must be moderated by the fact that many complaints are not suitable for mediation (e.a. offender unknown, lack of a victim etc.)
3. Other restorative justice practices
Currently, there are no programmes in Luxembourg that offer family group conferences or circles. Also, there are no projects to introduce such practices in the near future. Penal mediation is restricted to the prejudicial stage of the procedure. Restorative justice practices in prisons do not exist either.
The only non-judicial form of restorative justice that exists in Luxembourg is peer mediation in schools. Such programmes exist in fifteen secondary schools and some primary schools throughout the country. The pupils are trained by external trainers to mediate in conflicts between other pupils. The training is organised by the National Youth Service, in collaboration with the Ministry of Education. Beside the mediating skills, the pupils learn how to deal with conflicts and violence in their everyday life. Thus, the aim of the projects is not only conflict management, but also to develop the social competencies, the self-esteem and the empowerment of the pupils and to stimulate their participation in school life. The peer mediators are accompanied by adult coaches in their schools. The biggest challenge for the mediators and their coaches is to receive cases to mediate and thus, to convince the teachers, the pupils and the administrative personnel of the benefits of peer mediation for improving the climate within the schools.
4. Conclusion
The present summary shows that the concept of restorative justice is emerging slowly in Luxembourg. The concept is still rather unknown to most policymakers and judicial professions. The introduction of VOM with adults in the criminal procedures was mainly guided by practical considerations concerning the management of case flow. Nevertheless, elements of restorative justice principles can be found in the essence of the law. It belongs now to the practitioners to act accordingly to those principles and to help to develop high standards of restorative justice in their mediation activities.
Further information may be found at the following web sites:
www.mediation.lu (for information concerning the "Centre de Médiation")
www.legilux.lu (for legal references)
Paul Schroeder
paul.schroeder@mediation.lu
1. Luxembourg is divided into two judicial districts: The district of Luxembourg City, which is competent for the South and the Centre of Luxembourg, and the district of Diekirch, which is competent for the northern part of the country.
2. Ministère de la Justice, Rapport d’activité, Service Central des Imprimés de l’Etat, 1996.
3. Loi du 6 mai 1999 relative à la médiation, Mémorial A- N° 67 du 11 juin 1999, Service Central de Législation, 1999.
September 2005
The present article presents a short overview about restorative justice practices in Luxembourg. While victim-offender mediation (VOM) has been developing constantly over recent years, other restorative justice practices have emerged more slowly. The only notable exception is peer mediation in secondary schools.
2. Victim-offender mediation
a.) History
The idea of introducing victim-offender mediation started to emerge from the middle of the 1990s. In 1995, the prosecutors of the judicial districts of Luxembourg and Diekirch (1) first mentioned the possibility to formally introduce VOM in the penal procedure. Their main reason to promote VOM was to reduce the number of cases where no action was taken by the prosecution. The prosecutor of the district of Luxembourg, M. Robert Biever, was convinced that the lack of action is difficult to accept for the victim and public opinion while encouraging the author to re-offend. He considered that it is not necessary that every incivility receive a penal sanction, but that an offence where there is no action taken by the prosecution will have harmful consequences for the victim and the offender, especially if the number of dismissed cases is too high and concern facts that constitute a real breach of the public order (2).
At the same time, the head of the department for legal and social information of the National Youth Service, M. Jos Bewer, was confronted with a growing number of requests for information from young people who encountered real social and relational problems that often resulted in the breaking-off of social and family ties. In many cases, a judicial solution was not the appropriate answer to the problem. Therefore, M. Bewer was looking for other means to help his young applicants. He believed that mediation would be the most appropriate response to help resolve the problems between the young people and their parents or the society. Concerning young offenders, the mediation process ensures that they can assume their responsibilities by facing their victims. For the later, mediation has the advantage to understand what happened and permits quick reparation of their moral or material damage. Above all, the mediation process should (re-)establish the communication between the persons involved, so that their future relation is not harmed in a lasting way.
The first steps on the field of restorative justice were undertaken in September 1997. M. Jos Bewer was able to gain the support of the prosecutor from the district of Luxembourg, M. Robert Biever, and of the deputy prosecutor in charge of the juvenile protection department, Mme Mariette Goniva. They agreed to start a pilot project for mediation with juveniles. A mediation centre (Centre de Médiation a.s.b.l.) was established under the form of a non-profit organisation.
After the first encouraging experiences in the field of VOM with juvenile offenders, the public prosecutors of the two judicial districts of the Grand Duchy suggested the formal introduction of VOM for adult offenders in the code of criminal procedure. The Minister of Justice, on 18th of February 1999, submitted a bill concerning penal mediation to the parliament. Only two months later, the 21st of April 1999, the bill was discussed and voted on by the parliamentarians.
b.) Victim-offender mediation with juveniles
At the moment, VOM with juvenile offenders is only offered in the judicial district of Luxembourg and carried out by a single mediation centre. There is no explicit reference to VOM with juveniles in Luxembourg law. The magistrates of the juvenile protection department of the prosecutor’s office will recommend that the young offender contact the mediation centre. The recommendation of the prosecuting magistrate results from his power to decide on the appropriateness of the proceedings. On one hand, the lack of a legal basis permits a rather flexible use of mediation without any restrictions concerning the referrals. On the other, mediation is not offered in all the judicial districts, which results in an unequal treatment of offenders depending on where they committed the offence. Even though, there are no formal recommendations for referrals, VOM with juveniles remains restricted in general to minor offences.
After almost five years of experience with VOM with juveniles in Luxembourg, one can say that the results are encouraging, considering that participants managed to find a mutually acceptable arrangement in about 70 % of cases. The time has come to extend VOM with juveniles over the whole country, in order to give the opportunity to all young offender and their victims to benefit from restorative justice practices.
c.) Victim-offender mediation with adults
VOM with adults is the only mediation practice in Luxembourg that is governed by a specific law (3). The law gives the possibility to the public prosecutor to refer a case to mediation if such a measure permits the reparation of the damage caused to the victim, or puts to an end the trouble resulting from the offence, or contributes to the reintegration of the offender. Luxembourg’s law is largely inspired by the French law of 1993.
According to the preamble of the parliamentary bill, the law aims is to give a supplementary instrument to the prosecution to deal with petty crimes, in order to reduce the number of cases where no action was taken. The bill considers that mediation presents the following advantages:
- the rapidity of the procedure
- the flexibility of the outcome which allows a personalised response for each offence
- the possibility to offer a consensual answer to an offence, based on
the dialogue and the free participation of the parties
The law says furthermore that the mediator must inform the prosecutor of the outcome of the mediation at the latest eight months after the referral. Under exceptional circumstances, the mission may be extended for four months.
Mediators in penal matters must be accredited by the Ministry of Justice. The law requires that the mediator satisfy the conditions of respectability, competence, training, independence and impartiality. Unfortunately, the law does not specify what the training requirements are. This leads inevitably to major differences in the qualifications of the mediators. While some mediators set standards of quality for themselves, others have followed no training at all. There is no doubt that the lack of qualification criteria is harmful to the credibility of mediation in general and to the reputation of the mediator. Criteria of quality and qualification which are serious, controllable and controlled are simply essential if mediation should become a real instrument of restorative justice in Luxembourg.
VOM with adult offenders is offered in the whole country since it has been introduced in the code of criminal procedure. Most mediators who have been accredited are lawyers. The "Centre de Médiation" is the only NGO working in the field of VOM. All the mediators working for the centre have been accredited on an individual basis. They come from different professional backgrounds (social-workers, psychologists, educators, legal professions, etc.) and they all received training in mediation.
Statistics concerning the use and the results of penal mediation are difficult to obtain. For 2004, the number of cases referred to mediation can be estimated at about 200. Compared to the impressive number of complaints lodged every year (about 40.000), one must admit that penal mediation remains a marginal instrument of dispute resolution. Of course, this conclusion must be moderated by the fact that many complaints are not suitable for mediation (e.a. offender unknown, lack of a victim etc.)
3. Other restorative justice practices
Currently, there are no programmes in Luxembourg that offer family group conferences or circles. Also, there are no projects to introduce such practices in the near future. Penal mediation is restricted to the prejudicial stage of the procedure. Restorative justice practices in prisons do not exist either.
The only non-judicial form of restorative justice that exists in Luxembourg is peer mediation in schools. Such programmes exist in fifteen secondary schools and some primary schools throughout the country. The pupils are trained by external trainers to mediate in conflicts between other pupils. The training is organised by the National Youth Service, in collaboration with the Ministry of Education. Beside the mediating skills, the pupils learn how to deal with conflicts and violence in their everyday life. Thus, the aim of the projects is not only conflict management, but also to develop the social competencies, the self-esteem and the empowerment of the pupils and to stimulate their participation in school life. The peer mediators are accompanied by adult coaches in their schools. The biggest challenge for the mediators and their coaches is to receive cases to mediate and thus, to convince the teachers, the pupils and the administrative personnel of the benefits of peer mediation for improving the climate within the schools.
4. Conclusion
The present summary shows that the concept of restorative justice is emerging slowly in Luxembourg. The concept is still rather unknown to most policymakers and judicial professions. The introduction of VOM with adults in the criminal procedures was mainly guided by practical considerations concerning the management of case flow. Nevertheless, elements of restorative justice principles can be found in the essence of the law. It belongs now to the practitioners to act accordingly to those principles and to help to develop high standards of restorative justice in their mediation activities.
Further information may be found at the following web sites:
www.mediation.lu (for information concerning the "Centre de Médiation")
www.legilux.lu (for legal references)
Paul Schroeder
paul.schroeder@mediation.lu
1. Luxembourg is divided into two judicial districts: The district of Luxembourg City, which is competent for the South and the Centre of Luxembourg, and the district of Diekirch, which is competent for the northern part of the country.
2. Ministère de la Justice, Rapport d’activité, Service Central des Imprimés de l’Etat, 1996.
3. Loi du 6 mai 1999 relative à la médiation, Mémorial A- N° 67 du 11 juin 1999, Service Central de Législation, 1999.
September 2005
Last modified 2006-07-07 09:59
