Victim-offender mediation for juveniles in belgium

Abstract

This chapter presents the development of Victim-Offender Mediation (VOM) for juveniles in Belgium. The structure adopted in this presentation is related to the particular institutional context of this country. Indeed, Belgium is a federal country. The State reform process, which started in the 1980s, led to an increasing independency, including a financial autonomy, of the Belgian "Communities" and "Regions", and to a sharing of competencies between the Federal State and the respective Communities in the field of youth justice1. This "communautarisation" was of great impact on the quality and differentiation of the implementation of policy in both the socalled Flemish and French "Communities", including the implementation of victim-offender programs. In Belgium, the youth justice system is separate from the adult penal system. Since 1965, a youth protection law2 reflecting a rehabilitative philosophy is applicable to youth up to 18 years of age, which means that offences committed by juveniles are considered before all as symptoms of personal or social problems. Under this law, a minor who is in danger or who commits an act referred to as an offence is not held criminally responsible for his or her behaviour. The minor cannot be punished, but must be protected. For a long time, the law considered juvenile delinquents as needing educational measures to the same extent as endangered children. No real distinction was made between both categories of juveniles and, in principle, similar educational measures were imposed on both of them. In 1980, Art. 5, par. 1, II, 6 of the Belgian Lois spéciales de réformes institutionnelles has divided the Youth Protection competencies between the Communities and the Federal State: the Protection Law depends on the Communities, except for what concerns civil law (in particular the status of the minor and his/her family), penal law (in particular for the definition of provisions providing for offences) and judicial law (in particular for the organisation of the courts, for the definition of procedural rules and types of measures available to the judge in order to answer to the offences committed by young people). In addition, juvenile courts have their competencies limited to minors having committed an offence and to the imposition, if necessary, of assistance measures in certain cases even if no offence has been committed (for instance, when no agreement emerges between the youth - his/her family and the Communities and when this lack of agreement endangers the minor). Communities are responsible for all measures being taken in agreement with the families (and preferably with the youth) and for the organisation of the structures helping to implement decisions taken by the juvenile judge (Baeselen and De Fraene, 2000). Therefore, in Belgium, the federal Minister of Justice is responsible for legislation in the field of juvenile justice and the juvenile court makes decisions about juvenile delinquent cases. Even though a youth is not considered responsible for the acts he commits, he can be prosecuted for "facts described as offences"3. His rehabilitation is carried out by the use of educational measures, not by punishment. The measures (as reprimand, supervision, placement in a "closed or open institution") decided by the judge are organised and financed by the so-called Flemish and French Communities, which are responsible, between others, for the implementation of this legislation (Walgrave et al., 1998). In this context, Communities respectively recognize and finance private non-profit organisations (NGOs), including those implementing VOM for juveniles. In Belgium, there is currently no specific legal provision with regard to VOM for juveniles in the federal Youth Protection Law4. Nevertheless, mediation practice informally developed under article 37.2 of the 1965 Juvenile Justice Act. This article states that the juvenile court can impose a philanthropic and educational service, with the condition to put the young person under the supervision of a social service. Discussion has been ongoing for years with regard to reforming the law. A recent draft-law proposed by the Ministry of Justice to adapt the current Juvenile Protection Law (1965) would legalise restorative practices such as VOM and conferencing for juvenile delinquency. However, until the passing of such law, the interpretation of the current legal provision and the respective NGOs dependency on the policy and organisational criteria of different "Communities" leads to a different implementation of VOM projects. The present chapter covers the development of VOM programs for juveniles both in the Flemish and the French Communities in Belgium and aims to show how, in the same country, the development of VOM can vary according to different social and political contexts. © 2005 Springer.