Abstract

This contribution tries to assess in a critical way the practical implementation of Restorative Justice for Juveniles. Especially the aim of restitution and the statement of respect for due process within RJ-literature are investigated by means of an analysis of a Restorative Justice experiment in Belgian Juvenile Justice practice. Because RJ is said not to punish minors, it seems that legal rights are not always organised. However, stating that no more minor will be punished and that due process will be respected, does not mean that in practice no more minor will be punished and that due process will actually be respected. It therefore looks advisable to develop clear legal rules/guidelines concerning the organisation of judicial mediation procedures. Moreover the legal rights of minors (and of victims) within the mediation procedure should also be clarified. After all, history (and more particularly the treatment model) has shown that vagueness in procedures and a lack of legal rights easily lead to arbitrariness and punishment in the juvenile justice system.

1. Introduction

Whenever I read or hear about the RJ-paradigm, I am always surprised by the optimistic "restorative" language used in this discourse. Punishment or rehabilitation will no longer be the goals of the judicial reaction, but restoration. Moreover, if possible there should not be a judicial reaction at all. Indeed, thanks to the implementation of victim-offender-mediation, the offender and the victim should be able to decide themselves, with (a little) help of a mediator, what kind of restoration is necessary and sufficient to neutralise the damage caused by the crime. Thus both victim and offender will be satisfied with the mutually agreed restorative measure. At the same time, it is claimed that due process for minors will be respected (Declaration of Leuven, 1997).

However, one cannot help wondering if this optimistic discourse can stand firm once it is actually implemented in practice. Especially the stated goals of "restoration" (not punishment, nor re-education/rehabilitation) and a "maximum respect for due process," need closer attention in my opinion. To analyse this question, I would like to describe on the one hand the RJ-discourse existing in some leading RJ-literature (with special attention for the Belgian RJ-literature). On the other hand I would like to see if some RJ-practices really match this discourse. Hereby, special attention will be paid to a RJ-experiment I have closely followed for over a year.

2. The Birth of a Restorative Justice Discourse

In Belgium, and also in other countries, the judicial reaction towards minors having committed a criminal offence is still falling within the Juvenile Protection/Treatment Paradigm. This paradigm states that juveniles who have committed a crime, are criminally irresponsible and therefore can not be punished. The aim of the judicial reaction within the Protection/Treatment model is to protect, (re)-educate or rehabilitate minors. One does not speak within the framework of this model in terms of "Punishment" but in terms of "Measures" measures that should be taken in the "interest of the child"(Walgrave, 1995a, p.58 ; Van der Laan, 1996).

The absence however of basic penal principles of due process (presumption of innocence, legality, equality for the law, proportionality, the relation between the offence and penal punishment, right of legal assistance, etc.), was and is a source of growing fundamental criticism. At the centre of this criticism stands the observation that "the child receives the worst of both worlds; he gets neither protection (due process) accorded to adults, nor the solicitous care and treatment postulated for children[2]." As a consequence of a "justice movement" both on international (cf. UN Convention on Children's Rights) and on national level (the installation of a working group on youth sanction law[3]), in 1994 an act is voted in Belgium, which offers more due process guarantees to juveniles. Following this "justice movement", Community Service became, at least in certain Belgian districts, a widespread means of sanctioning young offenders. Community Service, as contrasted with "rehabilitative measures", offers the advantage to be limited in time (thereby minors know at what moment the sanction will take its end) and to be more respectful of the minor's legal rights (the sanction must be in proportion to the seriousness of the offence and not in proportion to the supposed dangerousness of the minor; a sanction can only be imposed by a juvenile judge after handling the merits of the case and with respect for due process) [4].

In the late eighties a third way of thinking seems to emerge in Belgium. A lot of researchers as well as practitioners feel dissatisfied with both the protection/ treatment model and the sanction/penal model. Following an international "œrestorative movement" (Bazemore, 1996; Galaway and Hudson, 1996; Messmer and Otto, 1992), they claim a third, "œnew" model should be established: the Restorative Model (Walgrave, 1992a, 1992b; Geudens, Schelkens and Walgrave, 1997). Within RJ-literature Community Service and Victim-Offender-Mediation are sometimes presented as two prototypes of a RJ model (Geudens, Schelkens and Walgrave, 1997).

Community Service is considered as a restorative measure because youngsters get the chance to repair in a symbolic way the damage they have caused to the community by working a number of hours to the benefit of that community (Geudens, Schelkens and Walgrave, 1997). Although CS might incorporate these restorative elements, the repressive elements obviously remain present. After all CS implies a limitation of freedom and it is far from clear whether minors really "œfeel" the restorative character of Community Service (Eggermont, 1994, 1997). Therefore only a judge should take this "restorative" sanction/punishment. Moreover, it might be even more appropriate to call CS a real punishment in stead of a prototype of a restorative measure. This last description might lead to the use of "mystified" language, easily hiding the clearly punishing character of this "restorative" measure. After all, history has shown that "œmystified" language in the treatment model easily led to punishing minors without any respect of their legal rights (Christiaens, 1999). Finally, we must not forget that CS existed, at least in Belgium, long time before we ever heard of a RJ model. Hence, presenting CS as a restorative measure looks more as a recuperation of a (constructive) punishing idea in a restorative view, than as an introduction of a "œnew", "restorative" way of handling juvenile delinquency.

Unlike CS, Victim-Offender-Mediation looks more as a prototype of a RJ-measure. It is often defended as the most appropriate way of handling juvenile criminal behaviour when victims are involved (Van Ness, 1996; Marshall, 1987; Mc Cold, 1997; Walgrave, 1996; Walgrave and Aertsen, 1996). Although mediation is sometimes presented as a "œrestorative measure" (Geudens, Schelkens and Walgrave, 1997), the presentation of this process as a procedure that can lead to a certain measure (restore the damage in a financial way, give his or her apologies, work to pay back the losses, avoid certain places, write a letter) looks more appropriate and, as a consequence, will be investigated in that way.

In the victim-offender-mediation the offender and the victim are considered as primary parties in a decision making process concerning the restoration of the material and immaterial harm caused by the crime. The victim-offender mediation also provides opportunities for reconciliation (Zehr, 1990). "The restorative justice response takes place in the societal context of empowering the state, focuses on losses, repairs the damage inflicted, seeks satisfied parties, and the victim is the central person of the whole process (Declaration of Leuven on the Advisibility of Restorative Justice for Juveniles, 1997; Dunkel, 1990; Walgrave, 1995; Weitekamp, 1997). Especially the restorative aim of the mediation (not punishment, nor rehabilitation), the central place of the victim and the offender within the whole process and the importance of the mediation process itself, seem to turn Victim-Offender-Mediation, unlike CS, into a real prototype of a RJ-model.

3. Does "RJ in action" equal "RJ in books?"

Taking into account some leading RJ-literature (and especially the Belgian literature on RJ), some principles and a possible organisation of the mediation procedure can be deduced. Within this contribution, I would like to, on the one hand, describe some of these principles and the proposed organisation. On the other hand, I will investigate if these stated principles and the proposed organisation (RJ in books) do not lead to a questionable practical implementation (RJ in action), especially as regards the legal rights of minors and the stated goal of not punishing, nor re-educating the minor, but restoring the harm. To analyse this question I have followed up a RJ-experiment in Belgium.

As well in the district of Leuven as in the district of Brussels a mediation centre is operative. Both centres work most of their time on the level of the PP. As a researcher I was in the possibility to speak with some of the mediators of these centres and hear what problems occurred in daily practice. Moreover, by the end of 1997, the mediation centres of Leuven and the one of Brussels, together with the authorities of the province of Brabant (this province covers the two above mentioned districts, Leuven and Brussels) started an experiment to promote even more Restorative Justice for young delinquents (see also Dumortier and Eliaerts, 1998). The mediation centres of Leuven and Brussels became aware of the fact that some minors could not participate in the mediation process because many victims (also) wanted a material reparation, which minors often could not offer. At the same time, they saw that some victims wanted the minors to work for their damage repair, instead of their parents paying the bill. Therefore, the mediation centres each created their "Restitution Fund." This Fund was composed by gifts of private persons and made a certain amount of money available for each hour the minor labours. However, it is the victim who receives directly the established amount of money and not the young offender. By the end of 1997 the two mediation centres made an agreement with the authorities of their province (Brabant) to start a "œProvincial Restitution Fund" replacing the two separate funds. This Provincial Restitution Fund is governed by a Commission, composed of mediators, social workers, lawyers of the districts Brussels and Leuven, and a provincial governor of the province of Brabant. Financially, the Provincial Restitution Fund is provided for by both private as well as public gifts. Thanks to the public funding, more minors should be able to participate in the mediation process. Young offenders who are not able to pay the damage-repair in the mediation procedure, can make an appeal to the Commission of the Provincial Restitution Fund. However, in practice, the mediators of the Mediation Centres make the appeal and explain to the other members of the Commission the opinion of both the young offender and his victim(s). Hence, offender and victim are not present at the Commission's meeting. They are represented by their mediator.

I followed the meetings of the Commission for almost a year. Hereby, I could observe in what way the appeals were handled, which remarks were made and by whom, which views the different actors showed and which decisions were actually taken. I always paid special attention to the respect of the minor's legal rights that was shown (or not) within this Commission and to the stated aim of restitution (and not punishment, nor re-education). Thanks to this participant observation and the conversations I had with the mediators, some bottlenecks, concerning the RJ-discourse on mediation (its principles and organisation), came to the surface. These bottlenecks will now be handled.

3.1 The PP as a gatekeeper of the restorative system

Often it is claimed in (Belgian) RJ-literature that the Public Prosecutor is in the best place to start a mediation procedure. He should have the possibility to send the case to a mediation centre (Van Garsse, 1999; Geudens, Schelkens and Walgrave, 1997). Although the public prosecutor clearly plays an important role (for he is the gatekeeper of the whole system), no clear guidelines are available concerning the criteria to be followed by the prosecutor. The question arises if such a situation respects sufficiently due process rules (Eliaerts, Dumortier and Vanderhaegen, 1998; Feld, 1999). Moreover, the Public Prosecutor's Office has the task to prosecute and thereby to prove that - and by whom - an offence was committed. Within the scope of the mediation procedure, by contrast, the Prosecutor no longer needs to establish these issues. The question arises whether or not the Public Prosecutor is taking over the role of the judge, without however safeguarding the minor's legal rights (presumption of innocence, right to legal assistance, equality, ...).

As soon as a case has been selected by the PP for mediation, the mediation centre can then examine the file and decide whether or not it will try to start a process of mediation. Again the question arises on the basis of which criteria a Mediation Centre can accept or refuse a file. Even if there were criteria for both PP and mediation centre, the question would still arise who checks if these criteria are actually met? For example a first and obvious condition to qualify for a victim-offender-mediation should be the existence of a crime. After all we are talking about the level of the PP. In practice however the establishment of a crime is not always as obvious as it looks. Imagine one boy lending his new bike to a friend, who leaves the bike unlocked outside his house at night. The next morning the bike is stolen. The boy, owner of the bike, thinks his friend stole the bike. The last one denies this fact but confesses that he has been negligent. Should we consider this negligence as a crime or only as a fault that should be dealt with by tort law? Or shouldn’t there be any more difference between faults and crimes, between tort law and penal law? Should we let the parties decide themselves whether it is a crime or not (see Van Garsse, 1997)? This way of working however, might lead to a restorative justice system, where on the one hand the principle of legality is not respected (nulla poena, nullem crimen, sine lege). On the other hand, the public character of the reaction on crimes and the public debate on what are crimes and how they should be handled, would be lost. After all, the handling of crimes also has a public task, i.e. the preservation of public order and rules and the prevention of the legal norms and rules becoming obscured.

3.2. Mediation and the ambiguous concept of "œvoluntary commitment"

In RJ-literature the voluntary acceptance and commitment of the offender and the victim are often stressed. Mediation should be a voluntary agreed process of negotiation and not judicially enforced (Geudens, Schelkens and Walgrave, 1997). It must be a possibility for offender and victim, not an obligation. However, it is hard to pretend that, in practice, a minor has a "free choice" and is in no way obliged to participate, when his unwillingness to co-operate can be sanctioned by prosecution before the juvenile court (Trepanier, 1993). After all, the minor knows that the PP will eventually evaluate the result of mediation. To state that minors participate in this kind of victim-offender-mediation on a voluntary basis therefore seems to represent a beautiful example of "œmystified" language. The description of this kind of victim-offender- mediation as an "extra judicial" procedure, and hence free from coercion, knowing that a PP is conscious of the ongoing mediation procedure and will evaluate the result, also shows some remarkable similarities with "mystified" or at least confusing language. What to think for example about the following description of mediation within one and the same scientific report: "the extra judicial mediation practice" (Stassart, 1999, p. 3); after all this process is situated within a judicial framework (Stassart, 1999, p. 7). And what to think of the description of mediation as an "extra judicial offer at the request of justice" (Van Garsse, 1999, p. 123). Moreover, it is stated that parties are free either to accept the offer or not, but because the parties know that the acceptance or non acceptance of the offer can have certain positive or negative consequences, the offer loses its character of an "offer without any engagement" (Van Garsse, 1999, p. 123). In other words, it is better to accept the offer if the parties (and especially the young offender) do not want to be confronted with a negative decision of the PP.

In summary, this kind of contradictory language within some RJ-literature leads, in my opinion, more to confusion and mystification than to a clarification of the concepts of "voluntary commitment" and "œextra judicial mediation."

At the same time, a voluntary commitment, is claimed really necessary to start a mediation procedure. Indeed, if parties participated in a mediation because they feel or are obliged to, the restorative philosophy and goals of mediation would be betrayed (Stassart, 1999, p. 7; Van Garsse, 1999, p. 123). However, recent Belgian research reveals that young offenders are, of course, also motivated to participate in a mediation process in order to avoid further judicial consequences (Stassart, 1999, p. 105). This instrumental motivation of young offenders (to avoid further negative consequences) again raises questions concerning the concept of "œvoluntary commitment." Moreover, it shows that the avoidance of a prosecution actually plays an important role for young offenders in their decision to participate. Even if they are not obliged explicitly by the PP to participate, the fact that the offer comes from this penal actor, clearly weakens the concept of "œparticipating by one's own free choice."

Following this discourse, where mediation is described as extra-judicial, not obliged, free to accept, voluntary commitment, etc., no legal rights are organised either. This situation seems to resemble the heavily criticised Treatment Model (also by RJ-advocates), where youngsters were not punished either, at least not following the treatment discourse, and therefore did not need a lot of procedural guarantees either.

3.3. Mediation is restitution. Not a sanction, nor rehabilitation!?

In Belgian RJ-literature, we often read that victim-offender mediation cannot be a sanction, for it is a voluntary agreed measure (Walgrave, 1992b; Geudens, Schelkens and Walgrave, 1997; Van Garsse, 1999). As mentioned above we think that the concept of voluntary acceptance is an ambiguous one. Sometimes it is argued that by having the possibility to choose between prosecution and mediation, at least there is a choice, and hence the condition of voluntary acceptance is satisfied and there is no question of a sanction. However, this kind of reasoning would also indicate that CS is not a sanction either, for young offenders also have to accept a CS[5] and in this case the young offender also has a choice, namely between a placement in an institution or the fulfilment of a CS.

Moreover, we see mediation more as a procedure that can lead to a measure. These measures do not always equalise pure restitution measures. Sometimes minors agree to avoid certain places and others are prepared to work in their free time to pay back the damage they have caused. When they work for the Provincial Restitution Fund they even work in the same places as youngsters who fulfil their CS. Such measures represent, in my opinion, clearly a limitation of their freedom and hence have some kind of a punishing character. Even though they accept this limitation of freedom, this does not mean that the punishing character of such a measure is by definition lost.

Besides, stating in books that minors must not be punished any more, does not mean that, in practice, the victims, the minor's parents or the actors within the "restorative system" will never feel the need to punish or rehabilitate young offenders. Within the Commission of the Provincial Restitution Fund this was sometimes clearly reflected by the arguments used by some members, when the question arose if the minor had to take (full) civil liability for the damage he caused. After all, in Belgium, parents are still civilly liable for the damage their children cause. But, the existence of a Provincial Restitution Fund that pays for each hour the minor labours, encouraged some parents to lay all material damage repair on the minor's back. This meant that the young offender did not have another choice than to work (sometimes for many hours) for the Provincial Restitution Fund. This bottleneck caused some very interesting discussions within the Commission.  

Some members were of the opinion that by letting young offenders take full responsibility and by letting them work (even a lot) to compensate, these young offenders could prove to their parents and their victim(s) that they really wanted to repair the damage caused by their crime. Also friends, schoolteachers, and significant others, could regain their confidence by seeing the minor's goodwill. Otherwise said, by this way of working their reintegration or rehabilitation in their family and their social network could be served. But, is this still a purely restorative aim or can I pretend to see some remains of the Treatment Model?

Moreover, some members said, that by having to work as a means of restoration, the young offender would "œlearn" to cause less damage to others. From now on, he knows he will have to face the unpleasant restitution consequences of his unacceptable behaviour. However, doesn't this "œlearning by deterrence" show some remarkable similarities with punishments? The resemblance to punishment increases when some members of the Commission see no wrong at all in letting young offenders work in their spare time. After all, they have committed an offence and therefore deserve to lose some spare time. In that way, they will "œfeel" what they have done wrong and (maybe) will not do it again. Again, the question arises if this kind of reasoning does not represent rather the penal model, than a restorative one.

The members of the Commission are not the only ones who use words and reasons that seem to belong rather to the penal or treatment model, than to the restorative model. Stassart's research also showed that victims want young offenders to work to pay back (and not just the parents paying the bill)(see Stassart, 1999, p. 108). But is this pure restitution? One might argue that everything depends on what the victim claims to need for his restoration. Some victims only need pure material restitution, regardless of who is paying the bill. Other victims, however, seem to need the young offender to work for the restoration, because he has to "œfeel" it or because he has to learn to take responsibility by working. At this moment, however, restitution and punishment seem to overlap, i.e., a kind of punishment is needed to give the victim a feeling of restitution. Although, it looks quite understandable that victims need this kind of restitution[6], it seems extremely difficult to defend, especially taking into account the UN Convention on Children's rights, that punishing, even in the aim of restitution, happens without any respect of the minor's legal rights (like the presumption of innocence, the right of (legal) assistance, appeal, a judge, proportionality, etc.).

Concluding, we think it is very difficult to expect that all actors within the juvenile justice system and the victims will advocate the same purely restorative views on the goals and the characteristics of the measures. Indeed, it seems that in practice, "œrestitution" also has a rehabilitative or punitive aspect. Moreover, many minors who have to work to restore also "feel" punished (Stassart, 1999). Therefor, it looks advisable to safeguard their fundamental legal rights.

3.4.  "œImpartial" mediators?

Following the RJ-literature the mediator should adopt a neutral stand (Walker, 1992). If he is to keep the confidence of the parties, he cannot be biased, neither towards the offender nor to the victim (Moore, 1986, p. 15). Some RJ-advocates say he should not impose or even suggest a solution for the conflict (Herz, 1993). His main role is to establish a space within which the parties can communicate and mediate. Nevertheless, cases of unbalance of power amongst the parties are likely to induce a situation whereby the weaker party is forced to accept a bad solution. In that situation, the mediator might be tempted to choose the side of that weaker party, "so as to avoid that neutrality gives way to the 'struggle for life'" (Staelens, 1987, p. 332). However, the latter option, which is proposed by some RJ-advocates (Geudens, Schelkens, Walgrave, 1997), puts the mediator in a position which is hard to distinguish from that of the judge. Moreover, neither the young offender nor their victims have instruments to press charges against mediators who neglect their unbiased role they ought to play. One could also wonder if mediators are prepared to choose the side of the minor against unreasonable or punishing demands from the victim and/or the PP's Office. After all, when the PP stops selecting cases for the Mediation Centres, the mediators’ jobs become endangered.

Another fundamental question is whether mediators should be community volunteers or professionals. In the first case there is a danger that they may not be capable of leading the rather complicated victim-offender-mediation in an appropriate way. On the contrary, when mediators are professionals, there is a danger of a new bureaucracy arising, composed of formally trained professionals who might become the"œnew thieves" of conflicts (Hudson and Galaway, 1996, p. 5; Falck, 1992, p. 133; Christie, 1977, p. 11). Are the mediators not "stealing", for example, the conflict when they explain the minor's and victim's views in front of the Commission of the Provincial Restitution Fund, in stead of the victim and the minor themselves? 

3.5. A restorative way of defining proportionality

Following the Declaration of Leuven on the Advisability of Promoting the Restorative Approach to Juvenile Crime[7], the outcome of any restorative process should not transgress a maximum which should be in proportion to the seriousness of the harm and to the responsibility and the capacities of the offender. However, the question arises, if this kind of proportion will not lead in certain cases to a more severe punishment of young offenders than is the case in the juvenile justice system. In the experiment of the Provincial Restitution Fund for example, some minors had to work quite a lot to repair their damage. After all, they earn but (approximately) 6$ an hour. In one case, a young offender (16 years) had some fun by tagging some walls and blinds of a supermarket. Unfortunately for him, he was caught. He agreed to be responsible for a damage of 1885,-$. The manager of the supermarket proposed the young offender a student job for one month during the holidays so the young offender could already repair 1143,- $ (= 177 u). For the other 743,- $ the young offender demanded the mediator to make an appeal to the Commission of the Provincial Restitution Fund, which awarded the appeal: by doing a Community Service of 122 hours he could gain the missing amount of money. In practice this meant that, if the young offender wanted to repair the damage, he would have to work one month for the supermarket and three weeks (=122 hours) for the Community. His schoolholidays would be reduced to one week in stead of two months. He would have to work for 300 hours before his "œmistake" would be repaired. This example shows beautifully that a "restorative measure" that is in proportion to the seriousness of the harm can turn out quite severe for a young offender, even more severe than a sanction taken by the traditional juvenile justice system. Indeed, the above mentioned young offender would probably never have got 300 hours in juvenile court, because, the sanction for vandalism stands at approximately 50 hours CS.[8]

Moreover, within the experiment on the Provincial Restitution Fund, the minors under 16 years earn a smaller amout of money for each hour they work than the older ones. This way of working is justified by stressing the fact that minors under 16 years are capable of doing less than older minors. Hence, they should earn less than the older ones. However, the question arises if this argument, which looks quite inspired by the kapitalist, free market system, deserves more weight than the argument that this same system also creates an inequality. Do minors under 16 years deserve to work more than the older ones, when both have caused the same amount of damage? Shouldn't the younger ones have to work less (at least not more) than their older friends? Moreover, we wonder if the (Belgian) prohibition on child labour is not violated by letting children under the age of 16 work.

3.6 The PP as evaluator of the mediation result

Once an agreement is achieved, the PP has to evaluate the result. On the one hand he should check if the agreement does not represent an unfair solution for one of the parties. On the other hand he must evaluate if, taking into account the mediation result, a prosecution is still necessary to restore the damage caused to society (Geudens, Schelkens and Walgrave, 1997).

A first question that arises is whether the PP is the right person in the right place to evaluate if the agreement does not represent an unfair solution, especially as regards the young offender. After all, the PP normally has to prosecute a young offender. He is definitely not used to defend the young offender's rights. Moreover, recent German research shows that Public Prosecutors (and not the judges, nor the victims, nor the public) are less prepared to accept pure restitution instead of "crime fighting" by means of punishments (Sessar, 1999).

On the other hand, again, it is unclear on the basis of which criteria the PP can still prosecute or not. The only vague criterion he has to follow is to evaluate if the damage to society still needs a prosecution. A risk is involved, however, if the Prosecutor makes dismissal of a case conditional to the fact that the minor has put in sufficient hours of work to compensate for the victim's damage. In that case, the Public Prosecutor's Office would be seen to turn victim-offender-mediation into an instrument to issue a "hidden" form of community service (Eliaerts, Dumortier and Vanderhaegen, 1998, p. 358).

At present, in Belgium, there is no legal instrument which determines whether and to what extent the prosecutor has to take into account the outcome of mediation, in cases where minors are involved. In practice, the issue tends to be settled in referring to local co-operation agreements between the Mediation Centre and the Public Prosecutor. Again this lack of legal rules creates an inequality between minors, depending on the district they live in.

a) mediation is successful

Some mediation centres, such as BAS! in the district of Brussels, demand that the prosecutor dismisses the case when the outcome of the mediation procedure proves successful. This demand is made on the basis of the Centre's concern for the rights of the young offender.[9]

However, the victim may feel abused, when asked to collaborate on an effort to dismiss the case against the young offender (Claes, 1998). In this situation, secondary victimisation may occur. In some cases, the premise of voluntary commitment and the motivation to co-operate in the mediation set up may appear doubtful, when both victim and offender are aware that successful mediation shall result in dismissal of the case. Therefore other Mediation Centres, such as Oikoten in the district of Leuven, are of the opinion that the Public Prosecutor still has the right to prosecute where mediation proved successful, if the Prosecutor considers the damage to be sufficiently serious to demand additional punishment. However, in practice, it seems that even when a dismissal is not promised by the PP, the acceptance of young offenders to participate in a mediation process is still motivated by the hope to positively influence the PP's decision (Stassart, 1999, p. 106). Hence their "œvoluntary commitment" to restore the victim's damages still appears doubtful. Moreover, the awareness that young offenders can still be prosecuted and punished, even if they have fully co-operated and have met all of the conditions that the parties have agreed upon,[10] might be seen to impose a threat to their legal rights ("Ëœnon bis in idem": no one can be punished twice for the same offence).

b) mediation is unsuccessful

When the mediation is not successful, the opposite question arises, i.e. should the Public Prosecutor always institute proceedings? Again, no answers can be found within an Act or written guidelines. Everything seems to depend on the PP involved.

Moreover, the question arises what exactly is an "œunsuccessful mediation"? Is the mediation process for example a downright failure when one out of many more conditions has not been fulfilled? One might argue that the process has far from failed when the offender has convincingly complied with most conditions, and when he proves to have 'learned' something. Is it fair, in such cases, that he can still face additional punishment?[11] What happens when the mediation has proven unsuccessful due to the victim or to other factors that are beyond the offender's will? Should we let the decision of the PP to prosecute a young offender or not depend on the victim's willingness to co-operate? This fact can be considered as a threat to the young offender (his case and future is made conditional on the victim's goodwill, the principle of equality will be violated), as well as to the victim (the offender can force the victim to co-operate in the mediation).

c) Power Position of the Public Prosecutor

The Public Prosecutor's Office clearly has a potential power position in the course of the mediation procedure. After all, that Office selects the cases for mediation, and does so with reference to criteria that are not clearly defined. The same thing can be said concerning the evaluation the PP has to perform. Especially in cases involving minors, persuasion and coercion from the Public Prosecutor are a real threat. Even though Mediation Centres demand that the minor should confess the crime, the relevance of additional guarantees for the minor's rights is great, taking into account the minor's age, his sensitivity to persuasion, and the fact that he cannot really be considered to be 'co-operating on a voluntary basis' within a legal framework that has several means of coercion at its disposal.

4. Some implications for policy

Therefore we think that, if one chooses to work by mandate of the Prosecutor, some procedural guarantees should be offered to the minor by means of a legal Act voted by the Parliament. First of all, it would be advisable to oblige Public Prosecutors to dismiss the minor's case when mediation turns out successful. Secondly, legal guidelines should clarify what kind of crimes and juvenile offenders (minimum age, first-offenders only?) can be send to a Mediation Centre.

Thirdly, the minor should be offered free legal assistance. In order to enable a practice where legal assistance or advice can be given, the minds of certain lawyers are to mature to the idea that mediation presents a valid alternative of conflict resolution, whereby the parties try to arrange the damage themselves. This system of mediation ought not to transform into a practice whereby the victim and the offender's lawyer get involved in a process of mediation. The role of the lawyer in this system, therefore, is mainly to ensure that the minor's elementary rights are safeguarded. By that scheme, he is to avoid that a minor consents into co-operating in the mediation process on the basis of coercion from the Public Prosecutor or from the Mediation Centre, while that minor considers himself innocent. Minors should not accept unreasonable damage claims out of ignorance either. In the Commission of the Provincial Restitution Fund, we have observed that certain victims formulate unreasonable damage claims. Sometimes, minors accept these claims out of ignorance or because they want to avoid a pursuit. Mention should be made, that neither the victim, nor the minor are present when their case is handled by the Commission. Their views are explained by the mediator who is handling their case. Nevertheless, we wonder if minors (and victims) should not have the possibility to defend their point of view before the Commission's members. For this occasion, minors should be offered the possibility to be assisted by a lawyer or a confident. Finally, it must be mentioned that arranging damage repair is a difficult problem, which triggers a number of questions whereby legal advice might also be very relevant (Eliaerts, Dumortier and Vanderhaegen, 1998, p. 362).

We think it would also be advisable to put a clear legal limitation on the hours a minor wants (or feels obliged) to work. Although within the Belgian experiment on Restitution Funds some limits have been settled, these limits appear to be insufficient. In fact, in the experiment, 12-year-olds may work for maximum one week or 38 hours, 13-year-olds for 2 weeks or 76 hours, 14-year-olds for maximum 4 weeks or 142 hours, 15-year-olds for 6 weeks or 228 hours and finally 16 and 17-year-olds are allowed to work for a maximum of 8 weeks or 319 hours[12]. Although I can agree that a certain "œrepair-effort" from the young offender may be expected, these limitations seem, in my opinion, slightly exaggerated[13], taking into account the power position of the PP, the lack of legal rights for minors and the fact that pure restitution is not always the only aim of the involved actors and victims (see above). Following the Dutch juvenile justice act (which is a penal one), a clear limitation of 40 hours, might be more appropriate at the level of the PP. If we want minors to work and repair more, maybe then, the mediation procedure should be continued at the level of the juvenile judge. At this level, the minor's legal rights are, normally, better guaranteed. Hence, the hours a minor wants (or is obliged) to work for the damage-repair can be higher (for example a maximum of 200 hours).

Maybe, mediation should always be organised at the level of the Juvenile Judge, in stead of the level of the PP. After all, the legal rights of minors (and victims) can be better safeguarded at the level of the judge (right to legal assistance, appeal, presumption of innocence, public nature of the court sessions,). Hereby, the Juvenile Judge could have the possibility to send a case (under certain legal criteria) to a mediation centre after guilt (or responsibility?) has been proven and, of course, if the victim and the young offender are prepared to negotiate within a mediation procedure. In this way, before any decision on punishment is taken by the juvenile judge, a process of mediation can start in order to see how victim and young offender would like to arrange their conflict. After this process of mediation the judge can then decide whether or not the arrangement (if one is established) shall be executed and if any additional "œrestorative" punishment (like CS) should be imposed on the youngster. Hereby, the juvenile judge should consider whether the arrangement is fair and just (for offender, victim and society), taking into account certain criteria like the seriousness of the crime, the damage it has caused and the age of the minor. Legal guidelines (that propose a minimum and maximum "œtariff" CS on the basis of the just mentioned criteria) could help the juvenile judge to make this "œcheck of balances". At the same time, these guidelines could create a certain equality (amongst the young offenders) and proportionality (between the "œrestorative reaction" and the seriousness of the offence and the damage caused).

This way of working on the level of the juvenile judge might also lead to less net-widening. Nowadays, most minors who get involved in a mediation procedure at the level of the PP are first-offenders, whose case would normally have been dismissed. Moreover, the PP, as contrasted with the independent and impartial judge, has to execute the directives of the Minister of Justice. After all, the PP also belongs to the Executive Power. What happens the day the Minister of Justice is an extremely right-winged politician who explicitly wants to take actions against unwanted minorities in "œhis" country? Therefore, the evolution of the PP taking over the role of the judge, should be carefully looked at.

5. Conclusion

The implementation of judicial victim-offender mediation (and Restitution Funds) is indeed complicated. This is partly due to the fact that many fundamental questions still arise about the purposes of these experiments and (judicial) Victim-Offender-Mediation in general. Can or should pure restitution be the sole aim of a judicial mediation process? If not, then the other goals (like punishment or rehabilitation) should be clarified and taken into account when establishing a legal framework? This legal framework concerning the organisation of judicial Victim-Offender-Mediation and Restitution Funds is urgently needed. Otherwise, "restorative experiments" will remain vague techniques for reacting to criminal behaviour committed by youngsters. In the past, vagueness in procedures and definitions has proven to lead to arbitrariness in the practice of the juvenile justice system.

Therefore, in future, government and research should focus on creating legal rights for minors and victims, together with rules and/or guidelines concerning the organisation of judicial victim-offender-mediation. After all, to declare that a judicial mediation procedure is always "œvoluntary accepted," never leads to a punishment and always serves "œthe best interest of the child" resembles too much the classical paternalistic thoughts, which have shown to be not that respectful for children's and youngsters' rights.


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[1] Els Dumortier is researcher at the Free University of Brussels, department of Criminology. Tel. 0032-(0)2-629.24.70   E.mail. Els.Dumortier@vub.ac.be

[2] Kent V. United States, 383 US 555 (1966).

[3] This workinggroup, composed by academics and practicians, stresses especially the respect of the minor's legal rights. See DECOCK, G. and VANSTEENKISTE, Ph., Naar een jeugdsanctierecht (Implementation of a Youth Sanction Model)?, Gent, Mys & Breesch, 1995.

[4] However, it must be mentioned that, since the 90's, a proliferation of CS can be noticed on the level of the Public Prosecutor. This way of working can hardly be categorised as respectful of the minor's legal rights, for no clear legal guidelines are available concerning the content and the hours of CS a minor has to fulfil. No legal assistance is foreseen neither. Some juvenile judges also impose CS before handling the merits of the case and sometimes without any legal assistance, which is equally irrespectful of the minor's legal rights.

[5] The European Convention on Fundamental Human Rights forbids forced labour. Therefore, CS has to be "œaccepted" by the involved person.

[6] After all, is it acceptable that crimes are dealt with in a purely "œtort law"-way? Can society agree, f.e., with the fact that rich parents of serious juvenile offenders keep on paying high bills to satisfy the victims and hence avoid punishments for their delinquent children?

[7] Voted on the first International Conference on Restorative Justice for Juveniles, mei 1997, Leuven.

[8] Of course, by fulfilling 50 hours CS, the young offender would have earned nothing. In stead, his parents would have been ordered by the Juvenile Judge to financially repair the damage caused by their child, because, in Belgium, parents are civilly liable for their children.

[9] In practice, a successful mediation seems to represent a mediation whereby the victim is satisfied with the obtained restitution.

[10] In the case of adult offenders, the law provides that all charges will be dropped when the adult offender meets all of the conditions. In such cases, however, the Public Prosecutor's Office leads the mediation process.

[11] In the case of adult offenders, the probation officers propose always to prosecute, so as to discourage the offender and his lawyer's speculations considering the possibility of dismissal (speculations which do induce non co-operation in the mediation process).

[12] Decision of the Steering Group of the Provincial Restitution Fund, 20th September 1999.

[13] In Belgium, adults are allowed to perform CS for a maximum of 120 hours on the level of the PP.