Under a Belgian law enacted 22 June 2005, mediation in criminal cases can be initiated at the request of persons with a direct interest in the criminal procedure. This request can be made at any time during the criminal justice process, including after trial and during execution of the sentence.

The explanatory memorandum of the new Belgian law refers to the attention given to this matter at the European level in Recommendation N°R(99)19 of the Council of Europe. In more detail the explanatory memorandum refers to the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings, stating in article 10 that “each Member State shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure”, and that “each Member State shall ensure that any agreement between the victim and the offender reached in the course of such mediation in criminal cases can be taken into account.” Article 17 states that “each Member State shall bring into force the laws, regulations and administrative provisions necessary to comply with this Framework Decision and more specifically concerning article 10 before 22 March 2006”.

The law is also based on the experimental practice of victim-offender mediation in Belgium since 1993, which has developed over the years and been established throughout the country, in Flanders and in Wallonia. The driving power behind this evolution was the work of the non-governmental organisations “vzw Suggnomè” (for Flanders) and “asbl Médiante” (for Wallonia), both largely financed by the Federal Department of Justice and as to “vzw Suggnomè” by the Department of Welfare of the Flemish Government as well.

Definitions and Basic Principles of Mediation in the Belgian Law of 22 June 2005

The law of 22 June 2005 describes mediation as a process that allows people involved in a conflict to have voluntary, active participation in a fully confidential process for solving difficulties that arise from a criminal offence, with the help of a neutral third person and based on a certain methodology. The goal of mediation is to facilitate communication and to help parties to come to an agreement by themselves concerning pacification and restoration.

All persons involved in a criminal procedure

The Public Prosecution Service and the Judges will see to it that all persons involved in a criminal procedure will be informed of the possibility of taking part in a mediation process.

Confidentiality of the mediation process

Documents and statements presented during the mediation process are confidential. Any such presentations made during the course of the mediation that are communicated to the judicial authority without the consent of both parties, or on which one party bases its arguments, will be excluded from judicial arguments.

The mediator cannot make public any facts that are revealed during the mediation process. Nor can the mediator be called as a witness in any criminal, civil, administrative or any other procedure concerning facts learned during the course of the mediation process.

There is an exception on the principle of confidentiality in those matters in which the parties agree to notify the judicial authorities. When judges are notified of certain elements with the consent of both parties, they have to mention this in their verdicts. They can take into account these elements, in which case they also must mention it in their verdicts (notice the resemblance with article 10 of Council of the European Union Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings).

Recognition of the mediation services

Mediators must work in mediation services that are recognized by the Minister of Justice. On 10 March 2006, the organisations asbl Médiante and vzw Suggnomè were so recognized as mediation services. Mediation services must be multidisciplinary and must present an action plan on cooperation with judicial and para-judicial structures.

When a mediation service refuses a request for mediation, it must give a reason. The mediation service has to examine each request for mediation and determine if the case is suitable for the process, based on elements of the judicial file and contacts with the involved parties. No case can be excluded a priori, but the law recogizes that there are methodological limits to mediation that may result in a refusal of the request.

Ethics Commission

An Ethics Commission will be established to create standards of conduct for all recognized mediation services. The commission will have general supportive, informative and advisory functions concerning ethical matters. To provide for consistency among the mediation services, the Commission will develop a code of ethics.

When particular ethical questions are raised, the mediation services can petition the Commission for advice in those cases. In addition, persons who have used a mediation service may notify the Commission when they feel that an ethical problem arose in their case.

The Ethical Commission also monitors training programs for mediators to ensure that suffient attention is given to ethical matters.

Future Perspectives

Although each district in Belgium has a mediation office operated by one of the recognized mediation services, there is still a great deal of work remaining to implement the law. The law creates new possibilities for mediation, leaving a number of questions unanswered for the time being. For example, where before mediation was aimed at more serious offences in which a decision to prosecute had already been taken, the law opens the door to all kinds of offences, from the petty to the most severe. There is a risk, therefore, that mediation practice could shift from severe offences to more petty ones. The greatest challenge in the near future is to find solutions to cope with this wide range of cases without giving up mediation as a process of the parties themselves.


David Eyckmans
Forum for Mediation and Restorative Justice - vzw Suggnomè
Belgium
More info: info@suggnome.be

August 2006