Restorative Dimensions in Belgian Youth Justice

Abstract

The revised Belgian Youth Justice Act (YJA) (2006) is featured as a case study due to the important restorative justice dimensions that it has introduced. The legal system in Belgium is dominated by a civil law regime with a deep-seated tradition in youth justice characterized by an almost exclusively ‘treatment’-oriented approach. Whilst the implementation of the revised YJA has encountered some challenges, it has also revealed that it is possible to prioritize restorative processes within a conventional civil law regime. That being said, the fundamental change that the Act aspired to achieve is only made possible by the application of additional measures.

Keywords

Belgium restorative justice Youth Justice Act 2006

Setting the Scene

Many youth justice systems have historically emphasized welfare and rehabilitative responses to juvenile crime. These systems are increasingly under pressure as a more punitive cultural climate consolidates around four core critiques: first, youth justice systems are not effective in achieving the rehabilitative effect that they claim; second, the focus on the needs of the juvenile instead of his/her deeds compromises legal safeguards and induces a lack of clarity towards the young offender; third, rehabilitative measures are too soft, especially in response to serious and patterned youth crime; fourth, victims’ needs and interests are neglected (Walgrave, 2004). As a response to such critique, the responsibility of the young offender is emphasized as a key principle of youth justice. Juveniles who commit offences are no longer seen as ‘helpless objects’ in need of support and treatment, but as active agents who are, or who should be, accountable for their (mis)behaviour. Accordingly, many countries have reformed their youth justice systems to focus more on the offence and the responsibilities of the young offender than on his/her need for re-education or treatment.

Reaffirming the juvenile’s responsibility is perhaps no bad thing, but the risk is that this tendency may increase punitivity within youth justice. Indeed, many contemporary reforms have served to strengthen the punitive dimensions of youth justice systems. Some commentators even argue for the abolition of specialist youth justice systems and advocate that consideration of the child’s/young person’s age should only pertain as a mitigating factor in a general criminal justice system for all (see for example Feld, 1993). Yet, ‘there is widespread agreement over time and space that alterations in sanctioning policies are unlikely substantially to influence crime rates’ (Tonry and Farrington, 1995: 6). While the threat of punishment can sometimes yield some effect, the belief that it has a general preventative impact has little or no empirically sustainable foundation. Moreover, punishments do not serve to morally educate individual offenders and, on the contrary, ‘punishment-based programmes… on average lead to a 25 per cent increase in re-offending rates’ (McGuire and Priestly, 1995: 10, our emphasis).

Restorative justice

In recent years, and set against the punitive backdrop outlined above, restorative justice has become a ubiquitous feature of juvenile justice reforms worldwide. That said, an intensive debate exists concerning different approaches and tendencies in restorative justice (see, for example, Contemporary Justice Review 3(4), 2000; Cunneen and Hoyle, 2010; Johnstone and Van Ness, 2007; von Hirsh et al., 2003; Walgrave, 2008a). This article does not aim to engage with the wider debates as such, but rather to critically examine the means by which restorative justice has been, and is being, applied in youth justice legislation, policy and practice in Belgium.

Most forms of restorative justice focus on the offender taking responsibility and involve him/her in actions to repair the individual, relational and/or social harm caused by their offending. In doing so, the offender is invited, pressed or (in the maximalist version) even coerced towards actively accepting and assuming responsibility. Many countries have now provided room within their youth justice legislation for victim–offender mediation, conferencing and community service (Council of Europe, 2009; Miers and Willemsens, 2004). At least three legitimizing rationales are typically advanced to accompany such developments: first, the offender must take responsibility for his/her deeds (which seems to depart from the traditional ‘treatment’ and/or welfarist philosophy); second, he/she must make up for his/her misbehaviour toward the victim and the community (which relates to the restorative justice philosophy); third, purely punitive sanctions, especially prison, should be avoided (a shift away from the orthodox punitive philosophy) (Schelkens, 1998).

Despite such developments, the question remains as to how far the inclusion of restorative practices can go. The relative informality of restorative justice processes do not naturally blend with the comparative formality of a legal frame. Some scholars even consider such ‘blending’ to be impossible (Feld, 1999; von Hirsch, 1998), arguing that restorative justice, at best, must be located at the margins of ‘mainstream’ responses to crime. Meanwhile, restorative justice advocates try to reduce the reach of ‘mainstream’ criminal justice responses and to create optimum space for the development of restorative approaches (McCold, 2000; Sullivan and Tift, 2006). Alongside this it is widely recognized that some legal formalism is required to sustain, safeguard, protect and promote rights and the challenge rests on striking a balance between formal legal procedures and less formal restorative processes. Indeed, this has comprised a dominant concern within the restorative justice research literature over the last decade or more (Braithwaite, 2002; Van Ness, 2002; Walgrave, 2002a).

Restorative justice has made its greatest impact in youth justice systems, possibly due to their greater flexibility compared to adult criminal justice processes. Legislation within New Zealand and Northern Ireland, for example, has seemingly positioned restorative justice at the centre of modern approaches to youth crime. In other countries, such as the Netherlands and France, the restorative response is more marginal. Belgium is amongst the countries that are positioned somewhere in between, where legislation explicitly provides for, but does not go as far as to oblige, the youth justice apparatus to accommodate, develop and apply restorative responses. Taking Belgium as a case in point, therefore, we consider what such a position means for the legal framework and for youth justice practice.

Belgium as a case in point

Belgium, in theory at least, prioritizes restorative justice responses to youth offending. Indeed, such responses are embodied within the Youth Justice Act 2006. Two issues are particularly noteworthy:

The long tradition of welfare (or ‘treatment’) oriented youth justice is deeply rooted in Belgium. It has produced an extensive network of social services and welfare agencies for family and child care, a range of residential care establishments and (some) facilities for (re)education. The network is characterized by close interaction between judicial institutions and a nexus of social workers, specialized educators, pedagogues, psychologists and psychiatrists. It is, in fact, a striking example of what Garland (1985) called the ‘penal welfare complex’, with its own traditions, conventions, customs, interests and powers. The more recent introduction of restorative justice practices, therefore, has had to contend with this long and deeply embedded welfarist tradition.

Belgium is the first country – with a typical continental European civil law regime – to go so far in trying to introduce restorative justice to its youth justice system. At first sight, restorative justice seems to prosper more easily in common law regimes than in civil law regimes. Indeed, restorative justice requires that all of the key stakeholders are included in responses to offending, thus challenging the traditional state monopoly that has tended to prevail. Where this monopoly is strongly centralized and consolidated by legal dispositions, as in the European civil law regimes, it is more resistant to change. The dominant legality principle in Europe leaves much less space for discretion to be exercised amongst the police, prosecuting agencies and sentencing authorities, than the opportunity principle provides in common law countries. The flexibility of the common law system, therefore, lends itself more readily to the implementation and development of restorative justice. Flexibility is a crucial element in restorative practices themselves, it is easier to carry out mediation or conferencing outside of the justice system – within the ‘community’ for example – and the outcomes of restorative processes are not as strictly weighed against legal checks as would be the case in civil law regimes.

It is interesting to explore how Belgium has attempted to resolve the challenges presented by these dynamic tensions. Indeed, attempts to settle these issues have inspired debates in the academic, policy and practice communities on the relative merits of integrating restorative approaches within youth justice systems.

The Belgian Youth Justice Act 2006

A shift in Belgian youth justice

Belgium completely abolished judicial punishments for children under the age of 16 via the Children’s Protection Act 1912. This purely welfare oriented statute was extended to those up to the age of 18 (with a very few exceptions between 16 and 18) by the Youth Protection Act (YPA) 1965. Moreover, the Belgian State reforms of 1980 and 1988 redistributed the jurisdiction for youth welfare and protection matters over the Belgian Communities and the Federal State¹ and this inevitably impacted upon youth justice (Christiaens and Cartuyvels, 2007; Put, 2007; Put and Walgrave, 2006; Van Dijk, Dumortier and Eliaerts, 2006; Walgrave, 2002b).

The radical reform process extended over 25 years under five consecutive Ministers of Justice and involved many commissions, working groups, memorandums and ordered reports (Put, 2007). Belgian authorities were caught in a hold between the options for restorative justice (promoted mainly by Flemish politicians, practitioners and academics); a revised model of rehabilitative justice (defended especially in the French speaking part of Belgium); and a tendency towards more punitive and repressive responses to what is called ‘serious youth crime’ (which was [and still is] demanded by some populists in both parts of the country). The principal outcome of this dynamic process included the reforms ushered in by the YPA 1965 and by the acts of 15 May 2006 and 13 June 2006,² that subsequently became known as the Youth Justice Act (YJA) 2006. The YJA provides the fundamental principles for the youth justice system, introduces additional legal rights and sets out a framework for restorative justice measures. The Act increases the possible interventions from four to twelve (serving mainly to commit the broad variety of measures already applied in practice into the legislation) and it permits judges to apply such measures cumulatively and/or to also add accessory conditions to the measures if necessary. Finally, several provisions exist in order to increase the involvement of the young person’s parents in the proceedings.

The YJA came into force gradually between 16 October 2006 and 1 October 2007 with the elements relating to restorative interventions becoming effective on 2 April 2007. We outline the basic principles of the new youth justice legislation below (see also De Smet, 2010: 235-382; Put, 2010: 237-433).

Scope and characteristics of procedure

Youth justice in Belgium is characterized by its autonomy from the wider criminal justice system respect to both content and organization. ‘Youth protection measures’ usually apply to persons younger than 18 at the time of the offence (art. 36, 4° and 37 YJA), although there is provision to refer cases to criminal courts and apply criminal law – for acts committed between the age of 16 and 18 years – if youth protection measures are not deemed to be appropriate (art. 57bis YJA) (Christiaens and Nuytiens, 2009; Weijers, Nuytiens and Christiaens, 2009). The YJA applies to minors who have committed an ‘act defined as an offence’ (art. 36, 4° YJA) (Kellens, Bihain and Vervoir, 2004: 142–144; Put, 2010: 240–241).

The youth justice system comprises specialist bodies (youth division of the public prosecutor’s office, youth court and the social service for the youth court) and a two phase procedure (preparatory and judgment). The public prosecutor alone decides whether a case will be referred to the youth court. Other options are sending the case to youth care offices, dropping charges, issuing a warning (written or oral) or proposing mediation (infra, part 3) (art. 45 up to 45quater YJA).

At the preparatory phase, the public prosecutor refers the case to the youth court judge for an enquiry (executed by the social services) on the ‘personality and the social circumstances’ of the offender. He/she can also request the judge to take provisional measures (art. 50 and 52 YJA). In principle, this investigation phase must be completed within six months. The public prosecutor then has two months to decide whether to refer the case to the youth court or to drop the prosecution (art. 52bis YJA).

The youth court judge is obliged to hear cases involving minors aged 12 and above, before taking a (provisional) measure. Each time the minor appears before the judge or the court, he/she has to be assisted by a lawyer (art. 52ter YJA). An appeal can be lodged with (the Youth Chamber of) the Court of Appeal against the judicial orders of the youth court (judge) (art. 58 YJA).

Youth justice interventions

Youth justice measures are called ‘measures of care, preservation and education’ (art. 37 YJA). Such measures are neither retrospective nor intended as a proportional sanction for the offence. On the contrary, they are prospective, with the aim of social rehabilitation. Similarly, in theory at least, there is no graduation in the severity of intervention proportionate to the gravity of the offence, rather the nature of intervention is adapted to the specific circumstances of each minor. In practice, however, the seriousness of the offence does influence the nature of the remedy (Put, 2010: 279–280).

The youth court has considerable latitude in deciding which measures to impose. These extend from a simple reprimand, through supervision by the social service, to placement in a secure institution. If the young person is not placed in a private or public institution, the judge can add various conditions regarding, for example, school attendance, participation in an educational programme, injunctions and/or house arrest etc. (art. 37, § 2 and § 2bis YJA). There are also a number of alternative possibilities including: intensive educational guidance; participation in so-called ‘positive achievement’;³ community service (up to 150 hours); voluntary labour (in which case a fixed sum per hour is set available for the reparation of the victim’s damage); a ‘written project’ (whereby a young person himself/herself proposes an action as a reaction to his/her offence, without any preliminary communication with the victim – this option becomes possible when mediation or conferencing proves to be impracticable for some reason) (art. 37, § 2, § 2bis and § 2ter YJA).⁴

Before a judge might impose a restrictive measure underpinned by her/his discretionary powers, the YJA requires that s/he extensively justify her/his orders and judgments (art. 37, § 2quinquies YJA) and sets out a list of criteria that must be taken into account by the judge (art. 37, § 1 YJA) including: the personality and maturity of the young person; the characteristics of his/her environment; the circumstances of the offence and the nature/extent of the damage inflicted; previous interventions; the security of the young person; public security; and the availability of treatment and/or educational programmes.

Furthermore, and importantly, the 2006 Act indicates that the judge should follow an order of preference in defining the appropriate intervention (art. 37, § 2 YJA), giving first priority to the restorative offer (proposal of mediation or conferencing) and second to the young person’s written project. If these appear not to be practicable, the judge is required to give preference to ambulant measures over residential ones. A placement in a closed institution is possible only as a last resort and under strictly defined conditions.

Restorative Provisions of the Youth Justice Act 2006

The restorative provisions of the YJA were largely inspired by informal practices that had previously existed. In Flanders, mediation for young offenders has been developing since 1994⁵ (Aertsen, 2000; Claes et al., 2003), carried out by not-for-profit organizations and very often supported by local judicial officials and/or by universities. Similar interventions have been trialled in the French Community since the 1980s by small NGOs arranging community service (Scieur, Van Duüren and Van Duüren, 1991) and, from 1993, mediation has become a distinct project (Lemonne and Vanfraechem, 2005; Van Doosselaere, 2003, 2005). Furthermore, a conferencing pilot-project was established in Flanders during 2000–2003 (Vanfraechem, 2005) and between 2003–2006 the mediation services that participated in the project continued to apply conferencing with the support of judges who considered it to have a positive impact with regard to serious offending.

The restorative dimension in legal dispositions

The Youth Justice Act 2006 clearly prioritizes restorative and reparative options. Mediation (at the level of the prosecutor, the youth court judge and the youth court) and conferencing (at the judge or court level) are now considered to be the primary responses to youth crime. The explanatory memorandum to the Act explicitly refers to pre-existing practices and research as grounds for the statutory inclusion of mediation and conferencing and the Act is the legislative vehicle for cementing these practices. Generally, the approach aims at assisting the young offender to assume responsibility and to take the victim’s rights into account and this is considered to be a more appropriate and effective response than the previous youth protection model.⁶

In every case, the prosecutor/youth court (judge) has to offer the young person, his/her parents and the victim the possibility of mediation/conferencing. The only condition is that the victim is identified (art. 45quater, § 1, art. 37bis, § 1 YJA). A referral to court can only be made if mediation has been referred to or if the reasons for non-referral (to mediation) are explicitly explained (art. 45quater, § 1 YJA). The prosecutor/youth court judge sends a letter to the parties to invite them to participate in mediation or conferencing. The mediation service (an NGO) receives a copy of the same letter and invites the parties again should they not respond to the initial letter within eight days. Mediation and conferencing can only take place when the parties voluntarily agree to participate (art. 45quater, § 1, art. 37ter, § 2 YJA).

If an agreement is reached within mediation or conferencing, it is sent to the prosecutor/youth judge. Only the agreement is sent and not the proceedings, as these are considered to be confidential. The prosecutor/youth judge must accept the agreement, unless it would be contrary to public order (art. 45quater, § 2, art. 37quater, § 2 YJA). When an agreement is reached at the youth court level, this is added to the judicial file. Since mediation and conferencing are considered as an offer, the youth court (judge) can add measures to the agreement.

When an agreement is reached and approved, the mediation service will monitor its execution and report back to the prosecutor. The fulfilment of the agreement does not prevent a prosecution being brought before the court. Whilst mediation may resolve the problems between the victim and the offender, the public dimension of the offence may still have to be addressed. Where an agreement could not be reached, judicial authorities and other persons are not permitted to use the course or results of the mediation process to the detriment of the young person (art. 45quater, § 4 YJA).

A report by the mediation service with regard to the execution of the agreement is first sent to the parties for comment and then transferred to the judge/court. If the agreement is properly executed, this should be ‘taken into account’ (according to the law, without further specification) for the judicial decision (art. 37quinquies YJA). If no agreement can be reached, similar conditions exist as for mediation at the prosecutor’s level, namely that it should not be to the detriment of the young person.

Taken together, the procedural and substantive elaboration of the restorative processes in the YJA results in the possibility of a ‘parallel’ settlement. Both pathways (the restorative and the ‘classical’ judicial) are functioning mutually independently. This was deemed to be the best way to safeguard the basic principles of restorative justice (confidentiality, voluntariness and neutrality), whilst at the same time preserving the fundamentals of both the judicial system (with its right to a fair trial and due process) and of the protection model (with its emphasis on welfare oriented interventions). However, a legislator’s intention of parallelism is not necessarily sufficient to achieve this goal. The restorative as well as the judicial practice should clarify whether this parallelism really exists, and whether this leads to fruitful co-existence rather than to frustrating hybridism.

Implementation in practice

In Flanders (14 judicial districts) in the period 1999–2002, the number of young people who participated in mediation increased by 20 per cent to 1604. Table 1 shows relative stability in referrals until 2005, with a peak of 1990 in 2004. From 2004 onwards, more detailed data were collected.⁷ Taking 2004 as an example, 69.3 per cent of the 1990 juveniles referred to mediation were referred for property crimes (about 15 per cent of these for theft with aggravating circumstances). About half (45.7%) of the total mediations led to an agreement. The increase in the number of referrals is clear from 2006 onwards, and especially apparent in 2007 and 2008, immediately after the YJA came into force.⁸ In 2006, the number of interactions⁹ between participants demonstrates that in 46 per cent of the cases, mediation was completed. Surprisingly, the number of completed mediations tends to decrease after the implementation of the YJA, while the total number of young people referred to mediation has increased. The year 2009 shows a decline in referrals, a tendency which persists in 2010.¹⁰

Table 1.

Referrals for mediation in Flanders 2002–2010

	Young people referred to mediation in Flanders	Interactions in referred mediation cases	Mediation process completed (interactions)
2002	N = 1604
2003	N = 1542
2004	N = 1990	N = 2991	N = 1079 (45.7%)
2005	N = 1587	N = 2430	N = 1079 (44%)
2006	N = 2132	N = 2655	N = 1224 (46%)
2007	N = 3485	N = 3912	N = 1481 (37%)
2008	N = 4349	N = 5491	N = 1790 (33%)
2009	N = 4050	N = 5584	N = 2060 (37%)
2010	N = 3770

Most referrals to mediation originate from the prosecutors, possibly due to the legal obligation for prosecutors to justify any decision not to refer to mediation (Balcaen, Van Rumst and Verlinden, 2008). An initial analysis of the total number of cases at prosecutors’ level show that 6 to 7 per cent of the registered decisions entail an offer of mediation.¹¹ In comparison most of the registered decisions entail dropping charges (about 70%) and about a quarter entail a referral to the youth judge/court.¹² Referrals to mediation have risen compared to 1999, seemingly to the detriment of the number of referrals to the youth judge/court (Detry et al., 2010).

With regard to conferencing, Table 2 summarizes some findings for Flanders. The available statistics are incomplete and the figures do not specify how many conferences have taken place since the implementation of the YJA, nor in how many conferences a victim or his/her representative were present.

Table 2.

Number of young people who were referred and took part in a conference; number of conferences held; and number of conferences where a victim was present (or represented) 2000–2009

	Young people referred	Young people that took part in a conference	Number of conferences	Conference with victim present or represented
2000–2003	N = 98	N = 58	N = 53	N = 26 (+ N = 10)
2004–2005	N = 65	N = 51	N = 39	N = 32 (+ N = 2)
2007	N = 44	N = 15
2008	N = 76	N = 37
2009	N = 114	N = 33

Ninety-eight young people were referred during the pilot project (November 2000 – November 2003 in five judicial districts) of which 58 participated in 53 conferences (co-offenders may participate in the same conference). In 2004–2005 (when the pilot project ended and no legal basis was yet available), 51 young people participated in 39 conferences (Vanfraechem, 2007). In 2007, 44 young people were referred and more than half of the cases did not result in a conference, most frequently because the victims decided not to participate. In 2008, the number increased to 76 referrals, but this was mostly accounted for by a significant increase in the number of referrals to one particular service (Balcaen, Van Rumst and Verlinden, 2008: 28). In 2009, 114 young people were referred to a conference: 33 young people took part in a conference, nine were still in the preparation phase at the time of data collection and for 72 youngsters a conference did not take place, most frequently because the victim did not want to take part (OSBJ, 2010: 30). With the exception of the judicial districts of Brussels, Leuven and Antwerp (three districts that participated in the pilot project) the number of referrals remains low (OSBJ, 2010: 29).

Comparing referrals to, and participation within, conferences to the total number of youth judge/court decisions is difficult because the figures are not collected in a systematic or uniform manner. That said, the number of young people having committed a crime and receiving a measure at the youth judge/court level in Flanders amounts to 3040 young people for 2008, and to about 3520 young people for 2009.¹³

No comprehensive figures are collected for the French-speaking part of Belgium. The limited information available shows that in 2009, 1034 young people were referred to mediation at the level of the prosecutor, another 205 at the level of the youth court judge/court, and 60 young people were referred to conferences. The judicial district of Liège covers about 1/10 of the cases of mediation at the level of the prosecutor, 1/3 of the mediation cases at the level of the judge and half of the conference cases.¹⁴

Messages from research

While research on the restorative justice practices emanating from the YJA 2006 is limited, some interesting messages have, nonetheless, emerged.

Research in the French Community shows that some prosecutors see mediation as an alternative to prosecution whilst others emphasize the relational aspects of the communication process. The young person’s responsibility is stressed. Sometimes material damages are a reason to send a case to mediation, while at other times the matter of damages is too complex and is thus left to the judge to decide upon (Couck and Tracqui, 2009: 86, 104, 132–4). Furthermore, the decision to refer to mediation depends on several elements, such as: the seriousness of the case (if the prosecutor considers the consequences too serious for the victim, he/she will send the case directly to the judge); the prosecutor’s personal ideas, conceptualizations and understandings (related to youth protection); timing (mediation may prolong the judicial procedure or the victim might not be ready for it); the relationship between the mediation service and the prosecutor’s office (good relationships create confidence rendering prosecutors to be more likely to refer cases); and the role of criminologists (every prosecutor’s office has at least one criminologist who can streamline the work) (Couck and Tracqui, 2009: 135–143). In general, the file is closed when the mediation is successful. If a problem is perceived with the young person’s attitude or he/she did not fulfil the agreement, another measure might be added (Couck and Tracqui, 2009: 143).

Research in Flanders shows that most public prosecutors propose mediation in most cases, as required by the YJA. Cases in which some prosecutors do not propose mediation include drug abuse (because there is no apparent victim), serious or sexual offences, or because they deem conferencing (which has to be proposed by the judge) to be more appropriate. There is nearly always a written justification in case of not proposing mediation, but sometimes the justification is formulated in a vague or standard way. All prosecutors interviewed indicated that if mediation proceeded well, they would normally decide not to prosecute (Franssens, Put and Deklerck, 2010: 197–205). At the youth court level, mediation and conferencing do not take a particularly central place as, in most cases, the proposal for mediation had already been formulated by the public prosecutor. On occasions, knowledge of the restorative offer is limited or mediation is only proposed together with the imposition of another youth justice intervention (Franssens, Put and Deklerck, 2010: 264–265).

Since 2007 the Flemish Community has increased the subsidies for the number of people working in the mediation services in order to mirror the priority the YJA had given to mediation and conferencing. At the same time, certain questions and problems come to the fore. For example, figures show that although the number of referrals to mediation has risen, the number of cases that fail to reach an actual mediation has also risen. A possible explanation may be that the very steep increase in referrals drastically reduces the capacity of the mediation services to maintain the same level of intensive preparation (including home visits to provide information about mediation). In many cases parties are simply sent a letter with information and are asked to contact the mediation service should they wish to participate (Balcaen, n.d.: 4-5; Couck and Tracqui, 2009). This might create a barrier, reducing participation in the mediation process and, as such, chimes with what Umbreit (1999) has called the ‘McDonaldization’ of mediation: reducing mediation to standard routine.

The explicitly stated preference for restorative responses in statute led to the expectation of an increase in referrals to conferencing. Several possible reasons are advanced for the rather low numbers. The first is a ‘procedural misunderstanding’: some prosecutors send a case to the youth court whilst at the same time beginning mediation, thus leaving no room for a conference at the later stage of the procedure.¹⁵ The second reason is due to a lack of knowledge of what a conference entails. Some judges (still) fail to appreciate the value of referring cases to conferencing and some youth court social services are not aware of, or convinced of, it (Balcaen, Van Rumst and Verlinden, 2008: 29). Even new mediators are not always familiar with the conferencing method and may, therefore, be unclear with regard to, for example, the differences between conferencing and mediation. Indeed, in both the Flemish and the French Community, referrals are higher in those districts where mediators are well trained and convinced of the added-value of conferencing compared to mediation. A third reason may be that some judges fear they will lose their decision-making power if they refer to a conference. Indeed, the law stipulates that the judges must accept the outcomes of the conference (unless its proposals are against public order) and their power is thus limited to supplementing conferencing with additional measures.

Although the Flemish Community has supported the development of the mediation services it has, at the same time, reduced the coordinating and supporting functions of the Support Service Youth Care. This is likely to impede a coordinated approach throughout Flanders and diminish the opportunities for training, exchange of experience and sharing of best practices among mediation services. Systematic follow-up is crucial to the further development of best practice. For example, the participation rate of victims is very unequal within and across districts and more reflection is required regarding the best way forward if and when the victim prefers not to participate. Some facilitators proceed with a conference in such cases; others do not. In New Zealand, regarded as the model for Belgium, conferences do proceed in the absence of a victim, but in Belgium this issue is being debated among practitioners and academics.¹⁶

It is important that the legislative framework for mediation and conferencing does not exclude innovation and experimentation. For example, one mediation service (in Leuven) is piloting a project with volunteer mediators for juvenile offenders (in Belgium the standard convention is such that mediators are professionals) (Claes and Mullens, 2009). Furthermore, every judicial district has a steering group focused on mediation, community service and training projects aimed not only towards maintaining existing practice, but also towards developing new approaches.

Discussion and conclusions

From pilot projects to legal dispositions: The role of the academy

Historically, the development of restorative justice in Belgium has been driven by inspired practitioners and supported by academics. The University of Leuven in particular has been very active in initiating pilot projects in close cooperation with fieldworkers, in convincing the judiciary to experiment and in providing scientific (research) follow-up for the same projects.

This represents a good example of how restorative justice principles and practices can be developed through research–policy–practice relations. Practitioners learn what is feasible and scientific guidance helps to orient practice, to bundle fragmented inspirational initiatives into a clearer conceptualization and to amplify its impact. There is no doubt that academic support has significantly contributed to restorative justice being considered as ‘serious and credible’ and to its (at least partial) acceptance by the judiciary (see also Van Doosselaere and Vanfraechem, 2010).

The relationship between academic criminology and public policy is delicate, and has been widely debated in recent years (Chancer and McLaughlin, 2007; Currie, 2007; Garland and Sparks, 2000; Goldson and Hughes, 2010; Parmentier et al., 2011). It might also be argued that just as embedded war journalists report within the limits defined by the military and accept military statements as truth, ‘embedded criminologists’ work within the limits defined by mainstream populism and accept the government-defined problems as real (Walgrave, 2008b, 2011). This, however, would lead to a form of technocracy, shrinking the debate on crime and security problems and reducing the scope for innovation. The academic contribution to the introduction of restorative justice in youth justice has been possible only because the academics did not ‘buy into’ punitive rhetoric, but autonomously reflected on better ways of responding to (youth) crime, supported pilot projects and undertook independent research. At the same time, it kept the line of communication to the policy makers open.¹⁷ In fact, Belgian criminologists in the restorative justice field have acted as both ‘floaters’ and as ‘players’ (Sparks, 1997).¹⁸

Restorative justice in civil law countries

As stated in the introduction, civil law regimes are less flexible than the Anglo-Saxon common law regimes and, therefore, less able to accommodate new practices. This presents particular challenges for restorative justice in its ambitions to open spaces for direct communication between a range of stakeholders. In Belgium the juridical process has had to be fine-tuned to facilitate possibilities for mediation and conferencing. During the experimental phase, the pilot projects depended on ‘enlightened’ public prosecutors and judges and on cooperation by specialist youth lawyers who foresaw the benefits of restorative processes.

As in most youth justice systems, procedures in Belgian youth justice are more flexible than those that apply within the adult criminal justice system. While this flexibility might raise concerns about legal safeguards (Feld, 1993; McCord, Spatz Widom and Crowell, 2001), it also offers more space for ‘creative’ solutions for juridical problems. For example, the youth court judge can take far reaching provisional measures before the final judgment and the youth court is freer in its decision making, less bound by the imperatives of proportionality and more able to adapt interventions to the individual characteristics and specific circumstances of the young person.

In this way, a simple adaptation in the wording and representation of approaches appears to be sufficient to ensure the inclusion of restorative justice processes in the civil law regime. For example, the presence of the police in conferencing is not presented as ‘representation of public order’ (which, in civil law, is the monopoly of the public prosecutor), but as ‘a symbolic presence to express public concern’ and the judicial order is not to ‘hold a conference’ but to ‘try out the potentials of a conference’.

Nevertheless, specific procedural dispositions are needed. One of the most striking issues is that civil law regimes require the judicial institutions, the public prosecutor’s office and the court, to retain the ultimate decision-making power. Consequently, the Belgian YJA stipulates that the outcomes of the restorative justice processes must be submitted to the public prosecutor or the court for approval prior to implementation. At first sight, this may appear to comprise a perversion of the fundamental restorative justice philosophy that lays the decision in the hands of the immediate stakeholders themselves. Part of this risk is circumvented by the disposition that the judicial institutions can change the agreements only if they are deemed to compromise public order (but they can also add other measures to the restorative outcome). Nevertheless, the risk remains that the requirement to submit the ‘restorative’ outcome to the public prosecutor or the judge for approval, may provoke self-regulation in the conference deliberations and orient proposals to satisfy judicial powers. Whether or not this potential jeopardy actually moves some practices too far away from ‘pure’ restorative justice principles and outcomes remains to be interrogated by systematic research. It is an important question, because it is a vital element in the quest for an adequate legal context for restorative justice. The manner in which restorative justice processes are located within justice systems and procedures is decisive for the future of progressive practice (Walgrave, 2002a).

Restorative justice and offender rehabilitation: Complementarity or competition?

The reform of the Belgian youth justice system came at a time when the welfare orientation of youth justice was being heavily criticized on a near-global level. Belgium was one of the most explicitly treatment oriented systems, which made it especially vulnerable within this context. Elements of Belgian public opinion were equally sensitive to the general tendency towards the imposition of greater levels of responsibility on children and young people. Ultimately, however, a traditional punitive system was not thought to be desirable. This scenario created a vacuum in vision, leaving space for a new model that focused more on the young offender’s responsibility, but in a constructive way. It provided momentum for advocates of restorative justice who also ‘benefitted’ from public concern for the victim, regularly profiled in the media (see van Dijk, 2007).

A complete transformation from the welfare approach towards a restorative approach was politically unfeasible (and, some will say, also not desirable), which created a strange coexistence of restorative and welfare options. In theory, both approaches should not be contradictory but, rather, perfectly complementary. Initially, it might have been expected that the overarching context was well-placed to facilitate the insertion of restorative processes into a system that was traditionally welfare oriented, but this also contains an intrinsic danger of blurring and ambivalence. It is also difficult to reform a juridical and welfare approach that has been nurtured over many decades (with a deeply rooted tradition of treatment) by introducing a new restorative justice philosophy. Two examples of such tensions:

According to the dispositions in the Youth Justice Act 2006, the response to the offence should give priority to restorative approaches. This priority is not enforceable, however. The judge remains free to opt for more conventional measures to promote the young offenders’ rehabilitation, leaving aside the restorative justice opportunities. This often happens in practice: many judges neglect the restorative justice path, instead using measures they are familiar with and that relate to the offender’s re-education and welfare.

Mediation and conferencing may themselves deviate from ‘pure’ restorative aims. This creates a risk signalled in research literature (see for example Acorn, 2004): so-called restorative practices may in fact function as a form of alternative offender treatment or re-education. In such instances, the victim’s needs and interests may not be genuinely recognized, but used only as ‘tools’ for the offender’s learning. It is a fear that is rightly raised by the victims’ movement and research (Pemberton, 2010), and at least part of the Belgian experience appears to confirm this concern.

Ultimately, the Belgian experience teaches at least two important lessons. First, the differences between both restorative and rehabilitative approaches must be clear and both conceptual and operational priorities must be explicit. This does not necessarily mean that ‘cohabitation’ is impossible, but an unequivocal frame of reference is vital to avoid ‘muddle’ that can derive from unclear aims, objectives and/or methods. Second, fundamentally new means of ‘doing justice’ cannot be introduced by legal reform alone. Standardizing practices through legislation might undermine the quality of such practices (Tremblay and Craig, 1997).¹⁹ The pioneering climate that accompanies progressive experimentation via piloting may be diminished when practice becomes routine (Dignan, 2005). Moreover, not all personnel responsible for implementing change are necessarily prepared to do so. A lack of adequate information and/or vested modes of resistance can often prevent practitioners from applying the law as intended by legislators. For these reasons, justice system reforms must be guided and accompanied by a series of facilitating initiatives to inform, motivate and train the public prosecutors, youth court judges, social workers, lawyers and other fieldworkers. Furthermore, the same initiatives should be conjoined with academic research focusing on the implementation of the law in order to adjust, or even correct, any unanticipated outcomes and/or misapplications in a timely way.

The legalization of restorative practices should not mark a standstill in research or in the development of progressive practices. Notwithstanding the critical analysis presented here, the Belgian Youth Justice Act 2006 and the possibilities that it offers for restorative responses to youth offending, can serve as an example for the integration of restorative justice within civil law and welfare-oriented youth justice systems. Despite the challenges, it shows that restorative approaches are possible in civil law systems, and that legislation may be a first step towards a fruitful coexistence of restorative justice and welfare/treatment approaches.

Footnotes

Notes

Professor Johan Put is Full Professor of Youth Law and Social Law at the Faculty of Law of the University of Leuven (Belgium) and is affiliated to the Institute of Social Law (ISR) and the Leuven Institute of Criminology (LINC).

Dr Inge Vanfraechem is a researcher at the University of Leuven (Belgium), Leuven Institute of Criminology (LINC), where she obtained her Ph.D. on conferencing for serious youth delinquency in 2006. She is currently coordinating a project on ‘Victims and restorative justice’ funded by the European Commission.

Professor Lode Walgrave is Emeritus Full Professor in Criminology at the University of Leuven (Belgium), Leuven Institute of Criminology (LINC). He is a founding member and previous chair of the International Network for Research on Restorative Justice and the International Association for Criminology of Youth.

References

Acorn

(2004) Compulsory Compassion: A Critique of Restorative Justice. Vancouver: UCB Press.

Aertsen

(2000) Victim–offender mediation in Belgium. In: European Forum for Victim-Offender Mediation and Restorative Justice (ed.) Victim–Offender Mediation in Europe: Making Restorative Justice Work. Leuven: Leuven University Press, 153–192.

Balcaen

(n.d.) HCA-Diensten. Available at: www.steunpuntjeugdhulp.be.

Balcaen

Van Rumst

Verlinden

(2008) Herstelrechtelijke en Constructieve Afhandelingen in Vlaanderen. Cijfernota 2008. Available at: www.steunpuntjeugdhulp.be.

Braithwaite

(2002) Restorative Justice and Responsive Regulation. Oxford: Oxford University Press.

Chancer

McLaughlin

(2007) Public criminologies. Diverse perspectives on academia and policy. Theoretical Criminology 11(2): 155–173.

Christiaens

Cartuyvels

(2007) Le modèle perdu de la justice des mineurs en Belgique? Entre droit et protection, paternalisme et responsabilisation, gestion des risques et idéal de traitement. In: Bailleau

Cartuyvels

(eds), La Justice Pénale des Mineurs en Europe. Entre Modèle Welfare et Inflexions Néo-libérales. Paris: L’Harmattan, 77–97.

Christiaens

Nuytiens

(2009) Transfer of juvenile offenders to adult court in Belgium: Critical reflections on the reform of a moderate practice. Youth Justice 9(2): 131–142.

Claes

Mullens

(2009) In het teken van actief burgerschap: Herstelbemiddeling en vrijwilligerswerking. Nieuwsbrief Suggnome 10(3): 14–19.

10.

Claes

Spiesschaert

Van Dijk

Vanfraechem

Van Grunderbeeck

(2003) Alternative practices for juvenile justice in Flanders (Belgium): The case for mediation. In: Walgrave

(ed.) Repositioning Restorative Justice: Restorative Justice, Criminal Justice and Social Context. Cullompton: Willan Publishing, 255–270.

11.

Contemporary Justice Review (2000), Special issue 3(4).

12.

Couck

J-V

Tracqui

(2009) A partir de l’observation N°10: La réforme du champ d’action des sections jeunesse des Parquets sous l’angle de la déjudiciarisation. Brussels: CIDE. Available at: www.lecide.be/docs/Rapport_integral_recherche_CIDE.pdf.

13.

Council of Europe (2009) European rules for juvenile offenders subject to sanctions or measures. Strasbourg: Council of Europe.

14.

Cunneen

Hoyle

(2010) Debating Restorative Justice. Oxford/Portland: Hart Publishing.

15.

Currie

(2007) Against marginality: Arguments for a public criminology. Theoretical Criminology 11(2): 175–190.

16.

De Smet

(2010) Jeugdbeschermingsrecht in hoofdlijnen. Antwerp: Intersentia.

17.

Detry

Goedseels

Vanneste

(2010) Les chiffres des parquets de la jeunesse au grand jour. In: Gazan

De Craim

Traets

(eds) Jeugddelinquentie op zoek naar passende antwoorden, Congresboek. Antwerpen/Apeldoorn: Maklu, 41–65.

18.

Dignan

(2005) Understanding victims and restorative justice. Maidenhead: McGraw Hill, Open University Press.

19.

Feld

(1993) Criminalizing the American juvenile court. In: Tonry

(ed.) Crime and Justice: A Review of Research, Volume 17. Chicago: Chicago University Press, 197–280.

20.

Feld

(1999) Rehabilitation, retribution and restorative justice. In: Bazemore

Walgrave

(eds) Restorative Justice for Juveniles: Repairing the Harm by Youth Crime. Monsey (New York): Criminal Justice Press, 17–44.

21.

Franssens

Put

Deklerck

(2010) Het Beleid van de jeugdmagistraat. Leuven: Leuven University Press.

22.

Garland

(1985) Punishment and Welfare: A History of Penal Strategies. Aldershot: Gower.

23.

Garland

Sparks

(2000) Criminology, social theory and the challenge of our times. In: Garland

Sparks

(eds) Criminology and Social Theory, Clarendon Studies in Criminology. Oxford: Oxford University Press, 1–22.

24.

Goldson

Hughes

(2010) Sociological criminology and youth justice: Comparative policy analysis and academic intervention. Criminology & Social Justice 10(2): 211–230.

25.

Johnstone

Van Ness

(eds) (2007) Handbook of Restorative Justice. Cullompton: Willan Publishing.

26.

Kellens

Bihain

Vervoir

(2004) Protection de la jeunesse. Liège: University of Liège.

27.

Lemonne

Vanfraechem

(2005) Victim–offender mediation for juveniles in Belgium. In: Mestitz

Ghetti

(eds) Victim–Offender Mediation with Youth Offenders in Europe. Dordrecht: Springer, 181–208.

28.

McCold

. (2000) Toward a holistic vision of restorative juvenile justice: A reply to the maximalist model. Contemporary Justice Review 3 (4): 357–414.

29.

McCord

Spatz Widom

Crowell

(eds) (2001) Juvenile Crime, Juvenile Justice. Washington DC: National Academy Press.

30.

McGuire

Priestly

(1995) Reviewing ‘What Works’: Past, present and future. In: McGuire

(ed.) What Works: Reducing Reoffending. Chichester/New York: Wiley.

31.

Miers

Willemsens

(eds) (2004) Mapping Restorative Justice: Developments in European Countries. Leuven: European Forum for Victim-Offender Mediation and Restorative Justice.

32.

OSBJ (2010) HCA, Cijfernota 2009. Available at: www.steunpuntjeugdhulp.be.

33.

Parmentier

Walgrave

Aertsen

Maesschalk

Paoli

(2011) The Sparking Discipline of Criminology: John Braithwaite and the Construction of Critical Social Science and Social Justice. Leuven: Leuven University Press.

34.

Pemberton

(2010) The Cross-Over: An Interdisciplinary Approach to the Study of Victims of Crime, Ph-D. Univ. Utrecht. Apeldoorn/Antwerpen/Portland: Maklu.

35.

Put

(2007) The juvenile justice system in Belgium. In: Giostra

Patanè

(eds) European Juvenile Justice Systems, Vol. I. Milano: Giuffrè Editore, 3–37.

36.

Put

(2010) Handboek Jeugdbeschermingsrecht. Bruges: die Keure.

37.

Put

Walgrave

(2006) Belgium: From protection towards accountability? In: Muncie

Goldson

(eds) Comparative Youth Justice. London/Thousand Oaks/New Delhi: SAGE, 111–126.

38.

Schelkens

(1998) Community service and mediation in the juvenile justice legislation in Europe. In: Walgrave

(ed.) Restorative Justice for Juveniles: Potentialities, Risks and Problems for Research. Leuven: Leuven University Press, 159–183.

39.

Scieur

Van Duüren

(1991) Bilan de la Seconde Phase du Projet Expérimental de Résolution de Conflit en Matière de Protection de la Jeunesse. La Médiation Victime - Jeune Contrevenant. Louvain-La-Neuve, unpublished.

40.

Sparks

(1997) Recent social theory and the study of crime and punishment. In: The Oxford Handbook of Criminology, Oxford: Oxford University Press, 409–435.

41.

Sullivan

Tift

(2006) Introduction: the healing dimension of restorative justice: A one-world body. In: Sullivan

Tift

(eds) Handbook of Restorative Justice. Abingdon: Routledge, 1–16.

42.

Tonry

Farrington

(1995) Strategic approaches to crime prevention. In: Tonry

Farrington

(eds) Building a Safer Society: Strategic Approaches to Crime Prevention, Crime and Justice Vol. 19. Chicago: University of Chicago Press, 1–20.

43.

Tremblay

Craig

(1997) Developmental juvenile delinquency prevention. European Journal of Criminal Policy and Research (2): 33–49.

44.

Umbreit

M.S.

(1999) Avoiding the marginalization and ‘McDonaldization’ of victim–offender mediation: A case study in moving toward the mainstream. In: Bazemore

Walgrave

(eds) Restorative Juvenile Justice: Repairing the Harm of Youth Crime. Monsey: Willow Tree Press, 213–234.

45.

Van Dijk

(2007) Slachtoffers als zondebokken. Antwerpen: Maklu.

46.

Van Dijk

Dumortier

Eliaerts

(2006) Survival of the protection model? Competing goals in Belgian juvenile justice. In: Junger-Tas

Decker

. (eds) International Handbook of Juvenile Justice. Dordrecht: Springer, 187–223.

47.

Van Doosselaere

(2003) De bemiddeling dader-slachtoffer in de Franse Gemeenschap. Nieuwsbrief Suggnomè 4(4): 3–7.

48.

Van Doosselaere

(2005) La médiation auteur mineur-victime: forme et conditions de la réforme. In: Christiaens

De Fraene

Delens-Ravier

(eds) Protection de la Jeunesse. Formes et Réforme. Jeugdbescherming. Vormen en Hervormingen. Brussels: Bruylant, 207–218.

49.

Van Doosselaere

Vanfraechem

(2010) Research, practice and policy partnerships. Empirical research on restorative justice in Belgium. In: Vanfraechem

Aertsen

Willemsens

(eds) Restorative Justice Realities: Empirical Research in a European Context. Den Haag: Eleven International Publishing, 57–94.

50.

Vanfraechem

(2005) Evaluating conferencing for serious juvenile delinquency. In: Elliott

Gordon

(eds) Restorative Justice: Emerging Issues in Practice and Evaluation. Cullompton: Willan Publishing, 278–295.

51.

Vanfraechem

(2007) Herstelgericht Groepsoverleg. Brugge: die keure.

52.

Van Garsse

(2001) Praktijk en wetenschap. Drie bedrijven uit de ontwikkelingsgeschiedenis van een bemiddelingspraktijk. In: Dupont

Hutsebaut

(eds) Herstelrecht tussen toekomst en verleden, Liber Amicorum Tony Peters. Leuven: Leuven Universitaire Pers, 515–530.

53.

Van Ness

(2002) Creating Restorative Systems. In: Walgrave

(ed.) Restorative Justice and the Law. Cullompton: Willan Publishing, 130–149.

54.

von Hirsch

(1998) Penal theories. In: Tonry

(ed.) The Handbook of Crime and Punishment. New York/Oxford: Oxford University Press, 659–682.

55.

von Hirsch

Roberts

Bottoms

Roach

Schiff

(eds) (2003) Restorative Justice & Criminal Justice. Competing or Reconcilable Paradigms? Oxford/Portland, OR: Hart Publishing.

56.

Walgrave

(ed.) (2002a) Restorative Justice and the Law. Cullompton: Willan Publishing.

57.

Walgrave

(2002b) Juvenile justice in Belgium. In: Winterdyk

(ed.) Juvenile Justice Systems: International Perspectives. Toronto: Canadian Scholars’ Press, 29–59.

58.

Walgrave

(2004) Restoration in youth justice. In: Tonry

Doob

(eds) Youth Crime and Youth Justice: Comparative and Cross-national Perspectives, Crime and Justice Vol. 31. Chicago: University of Chicago Press, 543–597.

59.

Walgrave

(2008a) Restorative Justice, Self-interest and Responsible Citizenship. Cullompton: Willan Publishing.

60.

Walgrave

(2008b) Criminology as I see it ideally. Address delivered by Em. Prof. Lode Walgrave on the occasion of his receipt of the 2008 European Criminology Award, Edinburgh 5 Sept. 2008. Newsletter of the European Society of Criminology 7(3): 3, 15–17.

61.

Walgrave

(2011) Between evangelism and charlatanism: Reflections on the social responsibility of criminology and other social sciences. In: Parmentier

Walpole

Aertsen

Maesschalk

Paoli

(2011) The Sparking Discipline of Criminology: John Braithwaite and the Construction of Critical Social Science and Social Justice. Leuven: Leuven University Press, 11–31.

62.

Weijers

Nuytiens

Christiaens

(2009) Transfers of minors to the criminal court in Europe: Belgium and the Netherlands. In: Junger-Tas

Dünkel

(eds), Reforming Juvenile Justice. Dordrecht: Springer, 105–124.