FROM COMMUNITY SANCTIONS TO RESTORATIVE JUSTICE
THE BELGIAN EXAMPLE
Tony Peters, in collaboration with
Ivo Aertsen, Katrien Lauwaert and Luc Robert*
I. INTRODUCTION
The following text aims at giving a view on the recent developments in the debate about the penal
reactions to crime.
In this development there is a clear shift in the focus of the action of punishment. Whereas theclassic repressive retributive reaction takes the crime and it's qualification in the center of attention,
punishment follows as a logical legally defined reaction and as a moral obligation.
Little diversification was provided (18th/19th century). A fine, a prison punishment or a combinationof both, were the available sentences.
The introduction of a rehabilitative complementary approach shifted the interest partly to theoffender and has lead to a growing number of penal reactions, which allowed it to take the personal
characteristics and needs of the offender into account. The rehabilitative model has widened the scopeof the action of sentencing and has lead to the introduction of a diversified set of measures andsanctions which include community sanctions but also measures of security to be taken against
dangerous offenders. Individual and general prevention were the drive behind the new measures andsanctions.
The development of a victimological approach within the context of the criminological sciences has
put the victims of crime, the consequences of their victimization and the reparation of the harmprovoked by the offence, in the center of the attention.
Victimology and victimological research has imposed on criminologists and other penal scientists torethink the concept of punishment. The sentencing process has to address the crime, it's consequences,the victim as well as the offender and the community in which they function.
This article concentrates the discussion especially around the development of a restorative
approach within the context of punishment and the sentencing process.
As a point of departure, a first overview concerns the available community sanctions within the
Belgian practice of penal reactions to crime.
The second part is built up around the central point of interest, namely the influence of victimology
and the development of a restorative approach and the broadening of the aims and practices ofpunishment.
In a third part it is made clear that also prison punishment should be the subject matter of a
restorative approach. This will be illustrated by presenting the Belgian pilot project on restorative
prisons.
The text which follows has been composed making use of three articles written by members of the
Research Group on Penology and Victimology, Department of Criminal Law and Criminology of theCatholic University of Leuven, Belgium.
* Research Group on Penology and Victimology,
Department of Criminal Law and Criminology, Faculty of Law,
Catholic University of Leuven,
Belgium

180

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Community Sanctions and Measures in Belgium by Ivo Aertsen and Katrien Lauwaert, publishedin Community Sanctions and Measures in Europe and North America, edited by Hans-Jörg Albrecht
and Anton Van Kalmthout, Kriminologische Forschungsberichte 101, Max-Planck-Institut für
Ausländisches and Internationales Strafrecht, Freiburg I Br. 2002, pp. 43-77.
Towards 'Restorative Justice': victimization, victim assistance and trends in criminal justice, by
Tony Peters and Ivo Aertsen, published in Crime and Criminal Justice in Europe, Council of Europe,
chapter 2.
How restorative justice is able to transcend the prison walls: A discussion of the project “restorative
detention”, by Luc Robert and Tony Peters.
This article is based on documents and reports written by different members of the action-research
project on “restorative prisons”. The text will soon be published in the proceedings of the Tuebingen
Conference on Restorative Justice (September 2002).
This overview focuses on community sanctions and measures (CSM’s) which are available inBelgium for adult offenders. ‘Community’ because the offender stays in the community during theexecution of these sanctions and measures. The term ‘sanctions and measures’ indicates that theoverview will detail both mechanisms which are imposed before trial by a public prosecutor or a judge
to avoid further prosecution or pre-trial detention, as mechanisms imposed by court decision, andmechanisms used after trial to enforce part of the prison sentence in the community.
II. THE DEVELOPMENT OF COMMUNITY SANCTIONS AND MEASURES IN BELGIUM
The introduction and the development of community sanctions and measures has been influenced
by the changing perceptions on what crime is and how society should react to it. Most of the CSM’s
currently existing in Belgium were designed according to the way of thinking about crime and crime
control which was predominant at the time they were introduced (Peters, 1996). Fines are imposed inaccordance with the repressive-retributive model. Conditional release, suspension of the sentence,
postponement of the execution of the sentence, probation and praetorian probation were adopted inaccordance with the rehabilitation model. Penal mediation was introduced in accordance with thevictim-oriented model. Some community sanctions and measures, however, have been introduced formainly very pragmatic reasons, such as the growing overburdening of the courts and the overcrowdingin the prisons. This is true for provisional release, transaction and conditional pre-trial release.
A. Community Sanctions and Measures Regulated by the Law
1. The Fine
The fine was introduced in the modern Code of Criminal Law in 1867 (Lauwaert, 1998). At thattime, punishment was meant to inflict pain and to deprive the offender from illegally acquired
advantages. The fine was the main form of punishment that was executed while the defendant wasstaying in the community (Peters, 1996).
A fine is a punishment which consists of the payment of a certain amount of money to the State. The
amount of the fine depends on the legal categorisation of the offence. The criminal code always indicatesa minimum and a maximum amount. Between these boundaries, the judge can freely determine theexact amount. Doing so he can take into account the objective seriousness of the crime, the kind ofcrime, the legal past of the offender and his financial capacity. Each time the judge imposes a fine, healso has to pronounce an alternate prison sentence. This alternate sentence will be executed if theoffender does not pay the fine that was imposed on him. In Belgium there is no system of day-fines.
2. Conditional Release
Mainly under the influence of the social sciences, the person of the offender became the focus ofattention from the end of the 19th century. Crime control became a matter of removing from society
dangerous and ‘incurable’ offenders. Harmless or occasional offenders received milder punishment,
which had to be adapted to their circumstances. In this context the ‘conditional release’ was introduced

181

RESOURCE MATERIAL SERIES No. 61
by the law of May 31, 1888. After different piecemeal changes, the system of conditional release has
been completely revised in 1998. The new regulation has improved considerably the position of thevictim in the conditional release procedure.
Conditional release is a transitional phase between being in prison and complete freedom, during
which the convicted person finds himself in a ‘supervised freedom’. Being released under conditions is a
privilege, not a right.
Three major conditions need to be fulfilled for a prisoner to be released conditionally. First, theprisoner must have served one third of his prison sentence with a minimum of three months. If thesentence was imposed for a repeated offence, conditional release can be granted after he has served two
thirds of the prison sentence, with a minimum of six months and a maximum of fourteen years.
Prisoners serving a life sentence can be released conditionally after ten years or, when convicted for arepeated offence, after fourteen years. Second (and this is new), the prisoner has to present a‘rehabilitation plan’ which shows his willingness to reintegrate in the community and establishes theefforts already made in this regard. Third, there must not be counter-indications, which show that arelease entails a serious risk for the community or which reasonably obstruct the social reintegration of
the prisoner. These counter-indications concern the possibility of rehabilitation of the prisoner, his
personality, his conduct during imprisonment, the risk he will commit new offences or the attitude of
the prisoner towards the victim(s) of the fact(s) for which he has been convicted.
Unlike previously, when the minister of Justice was competent to decide conditional releases, since1998 the decisions about conditional release are made by a commission. This commission consists of ajudge of the court of first instance, an assessor-expert in the execution of sentences and an assessorexpert in social reintegration. No appeal of the decision of the commission is possible. In certain cases
the commission will hear the victim (or his rightful claimant when the victim is deceased) when he/sherequests this and can show a legitimate interest. The hearing will only concern the conditions thatshould be imposed in the victim’s interest.
3. Provisional Release
Provisional release is another form of releasing prisoners before they have served their full prison
sentence. It concerns mainly prisoners with short sentences who can not benefit from the system ofconditional release. This mechanism has never been regulated by any statutory provision, but is a
praetorian measure, which has been set out in a number of Ministerial Instructions.
4. Suspension of the Sentence, Postponement of the Execution of the Sentence and Probation1
After World War II the idea that the sentence should be adapted to the person of the offender andshould serve his or her reintegration was further implemented. This was done through theintroduction, by the law of June 29, 1964, of the system of suspension of a sentence, postponement of
the execution of a sentence, and probation (which consists in the attachment of conditions to one of thetwo previous possibilities). These modalities stimulate the offender to make amends under the threat ofpronunciation or execution of the sentence. The suspension of the sentence prevents the stigmatisation
which is inherent in ‘not having a blank criminal record’. The postponement of the execution preventsde-socialising effects such as loss of a job, separation from one’s family, etc. The attachment ofconditions of probation allows the imposition on the offender conduct which will help him to not reoffend and/or to reintegrate. In 1994, the scope of application of these three modalities has been
considerably enlarged and the possibility of imposing community service or training as probation
conditions was inscribed in the law (10.02.1994).
A suspension of the sentence means that the sentence will not be pronounced and the prosecution
will be ended provided that the defendant is not sentenced to a criminal punishment or a punishment ofat least one month during a probationary period of one to five years following the judgement. The judge
can impose a suspension of a sentence of up to five years of correctional imprisonment and when the
defendant has previously not been sentenced to a criminal punishment or a correctional prison sentenceof more than two months. The suspension of the sentence can not be imposed without the consent of the1

Demet, 1998

182

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
defendant. The suspension of the sentence can be revoked if the defendant is sentenced to a criminal
punishment or a punishment of at least one month during the probationary period.
The postponement of the execution means that the sentence is pronounced, but will not be executed
provided that the defendant is not sentenced to a criminal punishment, or a correctional punishment of
more than two months without suspension of the execution, during a probationary period of one to five
years following the judgement. The postponement of the execution is possible for sentences of up to five
years and when the defendant has previously not been sentenced to a criminal punishment or a prison
sentence of more than twelve months. The defendant needs to consent to it. The postponement of theexecution is automatically legally revoked when the defendant is sentenced to a criminal punishment
or a correctional punishment of more than two months without suspension of the execution during theprobationary period.
Probation means that the judge imposes either a suspension of the sentence or the postponement of
the execution of a sentence and attaches conditions the offender has to respect during the probationary
period. The conditions necessary to impose probation are the same as for a suspension of the sentenceor a postponement of the execution. This means that each time the judge imposes either a suspension of
the sentence or a postponement of the execution, he can attach probation. When probation is attached
the grounds for revocation stay the same, but in addition there can be revocation when the probationer
fails to respect the conditions imposed and when the probation commission considers this serious
enough to bring it to the attention of the prosecutor. Probation can only be imposed when the defendant
agrees to the proposed conditions. It is left to the discretion of the judge to decide which conditions hewill impose. The law just indicates the possibility of imposing training or community service anddescribes under which conditions this can be done. Community service can, for example, be imposed fora minimum of 20 hours and a maximum of 240 hours and has to be executed within twelve months
during the spare time of the probationer. For training a maximum duration is not indicated, but it also
has to be followed during spare time and within twelve months.
A suspension of the sentence, with or without conditions of probation, can be imposed by theinvestigating courts and the trial courts (except for the Assize Court). A postponement of the executionof the sentence, with or without probation, can be imposed by all the trial courts (including the Assize
Court).
The probation assistants and the probation committee are the two entities which monitor therespect of the conditions by the probationer.
The prosecutor, the investigating judge, the investigating courts and the trial courts (except for the
Assize Court) may have a probation assistant prepare a social enquiry report. This can be done at thedefendant’s request or with his consent. When the judge wants to impose training or community service
as a condition for probation, a prior social enquiry report is obligatory.
5. Penal Transaction
The mechanism of transaction (provision 216bis Code of Criminal Procedure) was introduced in
1984. A new vision of criminal policy was not at stake here. The transaction had been introduced almost
solely to fight the backlog in the courts after the political pressure to do something about that problem
had escalated. This measure does, however, also serve the interest of the victim. The enlargement of its
field of application in 1994 meant a further accommodation for the victim.
In a penal transaction the prosecutor proposes not to prosecute the offender if he/she agrees to pay acertain amount of money for the benefit of the State. If the offender accepts the proposal and pays, thepublic action is dropped formally. The offender must have compensated the victim before a transaction
can be proposed.

183

RESOURCE MATERIAL SERIES No. 61
6. Conditional Pre-Trial Release2
In 1990 the Belgian parliament voted for a new law on pre-trial detention (20.07.90). The aim of its
introduction was the reduction of the high number of inmates in pre-trial detention in the Belgian
prisons. This same law introduced the system of conditional release in its provisions 35 through 38.
Conditional pre-trial release is a measure by which an investigating jurisdiction, an investigating
judge or in certain situations a trial judge, instead of locking a suspect up or keeping him in pre-trial
detention, decides to leave this person in the community or to release him under certain conditions. It isa substitute measure for the pre-trial detention.
The law does not give a limited list of conditions the magistrate can impose. But, there are some
restrictions. The law itself states that the magistrate has to show that the conditions he imposes serve
to prevent that the suspect would commit new crimes, would flee, would try to destroy evidence orwould organise a collusion. According to the Council of State, conditions that concern the physical and/or the psychological integrity of the suspect (e.g., undergo drug rehabilitation treatment) can only be
imposed if the suspect agrees to it.
Different instances control whether the offender respects the conditions imposed. When pre-trial
release is granted by an investigating judge or an investigating court, it is the investigating judge who
is responsible for this control. When pre-trial release is granted by a trial judge, the prosecutor’s office
is responsible for its control. In practice, the supervision is done by the police when the conditions havea character of merely controlling the conduct of the offender (e.g., not leaving a certain area, notconsuming drugs or alcohol, keeping away from football games...). When the conditions relate to gettingsocial assistance (e.g., undergo detoxification, meet weekly with a social worker), the supervision isdone by a probation officer, who works personally with the offender or keeps in contact with the social
service who works with the offender.
7. Penal Mediation3
Since the 1980s, victimology, victim movements and certain public events have led to more attention
to the plight of the victim. In addition to providing a quick social reaction to common city crime, thisconcern was at the basis of the introduction of ‘penal mediation’ (provision 216ter Code of Criminal
Procedure) (10.02.1994).
In penal mediation the prosecutor can propose that the suspect fulfils one or more conditions. If thesuspect accepts the proposal and fulfils the conditions, the public action will be officially extinguished.
Penal mediation is possible for offences for which the prosecutor deems a penalty of more than two
years of correctional imprisonment or a more severe penalty is not necessary. This means that, throughapplication of mitigating circumstances, penal mediation can be applied for offences for which theCriminal Code provides twenty years of (correctional or criminal) imprisonment.
The conditions under which the prosecutor can propose penal mediation are the following:(i)reparation of the damages caused to the victim or restitution of certain goods; in this case theprosecutor may convoke the victim and the offender for a mediation to settle the case;(ii) undergo medical treatment or a suitable therapy, if the offender attributes the offence to a diseaseor to an alcohol or drug addiction;(iii) follow a training programme of up to 120 hours;(iv) execute community service of up to 120 hours.

The maximum time to carry out the proposed conditions is six months for measures 2, 3 and 4, andundetermined for measure 1.

2

Lauwaert, 1998

3

Aertsen, 1998

184

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
In order to implement penal mediation, three new positions have been created, all three within theprosecutor’s service. In each court of first instance a deputy public prosecutor has been designated as
liaison magistrate for penal mediation (‘mediation magistrate’). He/she is not doing the concrete
mediation work, but is responsible for the selection of cases, the supervision of the mediation work andthe final session at his/her office. In the public prosecutor’s service of these same courts, one or moresocial workers function as ‘mediation assistant’. They are doing the practical work for the four possible
modalities of penal mediation: contacting the parties, preparing the conditions, mediating in cases
where a victim is involved and follow-up of the agreements. At each court of appeal, within theprosecutor-general’s office, two ‘mediation advisers’ have been appointed to co-ordinate the work of themediation assistants, to support them and to develop a criminal policy for mediation.
While the mediation assistant does most preparatory and mediation work, the mediation
magistrate leads the formal session which concludes the procedure. Both the offender and the victim
have the right to be assisted by a lawyer and the victim can be represented. The stipulations of thereached agreement or conditions are laid down in an official report (a procès-verbal). When the offenderfulfils the conditions, a second procès-verbal is drawn up, stating that the public action is extinguished.
If he does not fulfil the agreement, the mediation magistrate can summon the offender to appear incourt but he has no legal obligation to do so.
B. Application and Evaluation Data
1. General Findings
In Belgium, community sanctions and measures are rarely used compared to what is legallypossible. One exception may be the fine, which constitutes about 70% of all sentences. Only the public
ministry at the police level applies the penal transaction in a considerable way, and this mostly for
traffic offences. At the level of the court of first instance penal transaction remains a rather marginalpractice.
There is very little or no tracking of the use of conditional pre-trial release. From explorativeinterviews with practitioners we do know, however, that generally, conditional pre-trial release has avery low implementation rate.
Data on the conditional pre-trial release decisions that were referred to the probation service forfollow up are presented below. Table 1 shows a rising number of those referrals in the period 1994 to
1997.
Table 1. Number of Conditional Pre-trial Release Decisions Referred to the Probation Service
Number of cases referred
1994

514

1995

609

1996

no data

1997

1209

2. Suspension, Postponement of the Execution and Probation
The yearly number of sentences with suspension or postponement of execution, and certainly withprobation, is rather limited. In the year 1994 14,758 sentences with postponement of the execution wereregistered, of which 1435 (10%) accompanied by probation conditions. The number of suspended
sentences in the same year was 6146, of which 689 (11%) were with probation. Nevertheless, the total
number of probationers has increased significantly in the 1990s, as Table 2 shows.

185

RESOURCE MATERIAL SERIES No. 61
Table 2. Number of Probationers
December 31 of the year:

Number of probationers:

1980

2287

1985

2754

1990

3733

1995

5664

1996

6533

1997

7007

3. Penal Mediation
Penal mediation has developed quite fast and in a quantitative way it is successful. This may be
explained by the localisation of penal mediation within the prosecutor’s office. Tables 3 and 4 provide an
overview of cases selected for penal mediation in the first years: from November 1, 1994 (when the law
on penal mediation came into force) until December 31, 1997. From this data we can conclude that one
mediation assistant deals on average with more than 100 cases a year.
Table 3. Number of Cases for Penal Mediation
offendersfilesNov. 1994 - Dec. 1995

5393

4839

Jan. - Dec. 1996

5880

5266

Jan. - Dec. 1997

6738(-) not available

Table 4. Type of Cases in Penal Mediation (November 1994 - December 1996)%
property offences

37,0

violent offences

33,5

drug offences

14,5

sexual offences

3,0

other

12,0

total

100

Table 5 below shows which measures or conditions are imposed, in order to obtain an extinction of
the public action.

186

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Table 5. Measures Applied in Penal Mediation (November 1994 - December 1996)%
Only one measure%74,6
specification:

Combination of measures

reparation

33,7

treatment

12,4

training

8,7

community service

9,9

other

10,2

25,4

Despite the success of penal mediation in a quantitative way, there are important concerns, most ofwhich are formulated by the mediation advisers:•

The law on penal mediation lacks clear and uniform objectives. Different rationalities underlie thelaw and its application in practice: to demonstrate a visible reaction to minor offences, to help
victims, to restore the confidence of the public in the criminal justice system, and, to a lesser extent,
to handle the overcrowding of the prison system.

•

Practice shows that penal mediation is highly offender-oriented and tends to confirm unilateralpunitive approaches. The first modality of penal mediation (reparation to the victim) is applied inonly about 50% of the cases. Reparation concerns almost exclusively the financial aspect of thedamage. Mediation is rarely done face to face. The mediation session with the magistrate is often
carried out in a moralising way; in most cases there are no victims involved at all. An increased
number of failures to respect the combined conditions has been reported.

•

Finally, the advisers stress the risk of netwidening. There are indications that penal mediation is
primarily applied as an alternative for an unconditional waiver, and not as an alternative toprosecution.

4. Community Service
As was explained above, since 1994 community service can legally be ordered in two ways: as acondition for penal mediation or as a condition for probation. We try to summarise some generalfindings about the application of community service in the two models together. Table 6 is indicative forthe modest, but growing quantitative success.
Table 6. Total Number of Community Service Orders
Year
1994

199

1995

487

1996

1002

1997

1738

187

RESOURCE MATERIAL SERIES No. 61
C. Discussion on Further Perspectives
1. Ambiguous Developments
The preceding parts of this overview refer to some fundamental problems regarding the origins, theconceptualisation and the implementation of community sanctions and measures, which have wider
applicability than Belgium alone.
First, community sanctions and measures are, overall, used in a very limited way. The reasons forthis are not always clear and have to do with a mix of factors. Among these are the attitudes towards
and the restricted knowledge about alternatives for police, prosecutors, judges and lawyers. A second
reason lies in the weak co-operation between judicial authorities and non-judicial agencies. A
repeatedly mentioned problem concerns the classic, punitive way of thinking shared by different
professional groups in the criminal justice system. Whereas Belgium experienced more than three
decades of under-utilisation of the legal probation system until now, the new alternative measure ofpenal mediation has been implemented quantitatively in a fast and significant way within less than
two years since legislation.
But even from the perspective of an increased use of community sanctions and measures, we have to
face some fundamental questions. Do we know sufficiently how this multitude of new programmes isoperating in practice? Which groups of offenders are reached? What is the nature and the quality of theintervention? What about the effects on the persons involved, on their surroundings and on public
opinion? How do these alternatives relate to the formal justice system? What is the impact on
incarceration rates? For the Belgian situation essential information about most of these questions is
missing. There is no doubt about one point: community sanctions and measures do not currently
function as an alternative to custody. Their introduction did not curb the increasing prison population
rates in Belgium. On the contrary, findings suggest that community sanctions and measures, by theeffect of unintended mechanisms, have become one of the facilitating factors for the expansion of theprison sentence. In the near future, we may expect a further increase in the prison population(Snacken, 1997).
One of the effects of the implementation of community sanctions and measures referred to in thelast paragraph is that they may indirectly cause a supplementary prison input, since these alternatives
keep a structural or a de-facto link with the prison sentence. This might be the case with Belgium’s
measures and sanctions of penal mediation and probation because they may impose on offenders who
failed to perform their community sanction, a conditional or an effective prison sentence. The
provisional conclusion of this paradoxal development seems to be that an increased use of community
sanctions and measures goes hand in hand with an expansion of the prison population.
In Belgium, community sanctions and measures are applied mostly for relatively minor offences.
The legal conditions for transaction, penal mediation and probation link the applicability of thesemeasures or sanctions to certain upper limits of a possible prison sentence in a given case. And evenwhen the legal range is relatively broad, prosecutors or judges tend to use these alternatives in a
restricted way, limiting them to less serious crimes, to first or young offenders, or to petty drug offences.
The overall result of this is a ‘two-track development’. Community sanctions represent the soft option;
they are seen as a favour or a last offer to the delinquent who committed a rather minor crime. ‘Serious’cases then, such as violent offences and organised crime, are dealt with in a harsh way, because thesecases are not deemed appropriate for a community approach. The evolution of the Belgian prison
population – an increase of long-term inmates with sentences of five years and more – seems to confirm
this dualism in penal reactions. In any case, practice shows that even community sanctions can be
executed in a very punitive and stigmatising way.
2. The Need for a New Approach
During previous decades, a new element has entered in the debates on crime and criminal justice:
the attention to victims of crime. This is totally new in criminal justice policies, compared to theunilateral orientation to the offender in both the traditional repressive and rehabilitative models. Thisevolution might have far reaching consequences. In all western societies the care for victims of crime ispresent now, sometimes in a pronounced way. Victimology and the victim movement indubitably have

188

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
affected the way society and penal systems react to crime. The recent laws on penal mediation (1994)
and penal transaction (1994) have clearly been influenced from this perspective. The new Belgian Codeof Criminal Procedure (1998) and the new Law on Conditional Release (1998) also integrate theposition of the victim in their procedures. Talking about sanctions or alternative sanctions without
taking into account the position of the victim has become hardly possible (Dignan and Cavadino, 1998).
The victim is also represented in the European Rules on community sanctions and measures(Recommendation R(92)16), where Rule 30 stipulates: ‘The imposition and implementation ofcommunity sanctions and measures shall seek to develop the offender’s sense of responsibility to thecommunity in general and the victim(s) in particular’. The interest of the victim as well as theimportance of community involvement are also stressed by the U.N. Standard Minimum Rules for noncustodial measures. The so-called Tokyo-Rules (1990). For example Rule 1.2.: ‘The Rules are intended topromote greater community involvement in the management of criminal justice, specifically in thetreatment of offenders, as well as to promote among offenders a sense of responsibility towards society’.
The rights of the victims are mentioned in several Rules, dealing with the legal safeguards, pre-trial
dispositions and the avoidance of pre-trial detention, sentencing dispositions and conditions of noncustodial measures. Rule 8.1. on sentencing dispositions stipulates: ‘The judicial authority, having at its
disposal a range of non-custodial measures, should take into consideration in making its decision the
rehabilitative needs of the offender, the protection of society and the interests of the victim, who should be
consulted whenever appropriate.
There is, of course, the risk that the attention to the victim and the strengthening of his position
within criminal justice procedures again reinforces the retributive justice model. Therefore, a balanced
approach is needed, which guarantees the right concern for the victim, the offender and the society.
This new model might be found in the concept of ‘restorative justice’. Restorative justice is not a new
sanction, measure, or a programme. Restorative justice refers to a set of principles and values, which
represent a specific way of defining crime and elaborating adequate social reactions. Crime is no longer
seen as a violation of abstract state rules, but as a conflict, which causes harm to people and relations.
Within this rationale, the answer of the criminal justice system should primarily focus on the needs ofvictims and local communities.
III. VICTIMOLOGY AND RESTORATIVE JUSTICEThis part aims to give a clear and well articulated view on victimization, its consequences and theanswers developed by the criminal justice system. These topics, presented in a European context, refer
to complex developments in the criminological sciences and in social and criminal policy during the last
three decades.
It is our intention to discuss the policy changes as resulting from scientific analysis and research.
More than other parts of the criminological sciences, victimology became an outspoken applied
approach. This includes a great diversity of practices and actions oriented towards the protection, thesupport, the assistance and the strengthening of the legal position of the victims of crime. These
practices have been realized within different policy frameworks and offer legitimacy to several types ofgroups of professionals and citizens to have their say in this field. Victimology and restorative justice
are on top of being an important field of application in the criminological sciences, a battlefield or
meeting place where many interest groups clash.
When developing this overview references are in the first place made to what happens in Europe,
putting the accent on Western-Europe. Nevertheless we will also have to discuss North American
practices and policies, partly to reintegrate the origins of the victimological thinking, partly to contrast
European approaches with the North-American way of working.
A. Victimology and the Victim Movement
1. A Short Historical and Anthropological Comment
The fact that victimization since the last two decades became a topic of first criminological interestand is given a top priority on policy agendas is only remarkable because the opposite, the absence of a
victim perspective, has been a general rule in the proceeding years. Of the three protagonists of crime,189

RESOURCE MATERIAL SERIES No. 61
the offender, the victim and the community, criminal justice has always focused on the relation between
the offender and society (Verstraeten, 1990). Research in criminal justice mainly focuses on the
problems of legal protection of the suspect or on the problems of the effectiveness of the system. Theinterests of victims of crime have been for a long time “quantité négligeable” (Van Dijk, 1988).
Punishment and the social reintegration of the offender polarize the powers of criminal justice (GarcíaPablos, 1991). From the moment of denouncing the offence the victim experiences a victimization byadministrative runaround (Ash, 1972). Once a case enters the criminal court system, the victim-witness
becomes susceptible to a myriad of problems and needs (Knudten, Meade a.o., 1976).
However, the history of the administration of criminal justice shows that in non-state societies thevictim had an equal position compared to the offender. To finish or to avoid vendetta, revenge and evenwar, the private arrangement of the damage, taking into account the talio principle (proportionality)
became a usual practice in which mediation was not an exception. Once the state monopolized the rightto criminal prosecution and converted the “wergeld” or the compensation, that used to be paid to thevictim, into a fine destined to the King's coffers, the victim became the “forgotten figure”, a legal
nonentity (Fattah, 1992). The reduction of the victim to an inconsequential figure coincided with the
emergence of the public prosecutor (Gallaway and Hudson, 1981). The real decline started with the
emergence of a criminal law which viewed the criminal act not as an offence against the victim but as an
offence against the Sovereign and later the State (Fattah, 1992).
2. The Etiological Victimology
The first systematic criminological attention given to the victims of crime was subordinated to the
traditional etiological questions (about the causes of crime) of the positivistic criminology. Since thefourties some criminologists, who are now seen as the “founding fathers” of the victimology, focused
their research on the role of the victim in the construction of a criminal act. Mendelsohn and Von
Hentig developed a victimogenetic typology (the process of becoming a victim) in which the degree of
guilt or innocence and the degree of resistance to or collaboration with the offender became the criteria
to distinguish between the victims (Mendelsohn, 1956; Von Hentig, 1941 and 1948). “The study of thevictim, his characteristics, his relationships and interactions with the victimizer, his role and his
contribution to the genesis of the crime seemed to offer great promise for transforming etiologicalcriminology from the static, one sided study of the qualities and attributes of the offender into a dynamic,
situational approach that views criminal behaviour as the outcome of dynamic processes of interaction.”(Fattah, 1979). Mendelsohn proposed victimology “as a new branch of science” concerned with the studyof the factors which influence the behaviour of the victim (Shafer, 1968). Ellenberger (1954) analysed
the victimogenesis like the criminogenesis and studied factors such as social marginality and social
isolation which diminishes the protection of a potential victim. One of the important phenomena he wasinterested in was the changing roles of offenders becoming victims and vice versa.
The empirical approach of the victimological perspective in the positivistic criminology has been the
study of Marvin Wolfgang (1958) “Patterns of criminal homicide” in which he develops the concept of“victim precipitation” to express the contribution of the victim in the realisation of the crime. Using thesame concept in a study of rape by Amir (1967) provoked strong negative reactions from the side offeminism. His study was not seen as an objective analysis of the relation between offender and victim
but as a moral judgement of blaming the victim. That was the end of the etiological victimologicalapproach and an important step in the direction of a new victimological movement typified by Fattah(1979) as “from a victimology of the act to a victimology of the action”.
The further development of victimology has been influenced during the sixties and seventies by two
different backgrounds. Next to feminism as a political movement, criminography through “darknumber” research turned into it's victimographic basis.
3. From Criminography to Victimography
Since the sixties there has been a clear shift within the criminological sciences from a clinicalpsychological to a sociological-interactionist perspective. One of the important critical reflections
concerned the study of the quantity of crime in society. The classical sources of crime statistics havebeen questioned in a fundamental way by the social reaction approach of crime (labelling theory), which
concentrated on the understanding and analysis of the selectivity of the action of the police and the190

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
criminal justice system in dealing with crime. The statistical model as developed during the 19 th
century by Quetelet and Guerry, portraits the functioning and intervention capacity of “criminal justiceinstitutions”, which has to be distinguished from the reality of the types and quantity of crime (Van
Kerckvoorde, 1995).
To be able to measure the crime phenomenon researchers embarked on the so called “dark numberof crime”, using self report studies in which a citizen is approached as a potential offender who is asked
to report about eventually committed crimes during the last 6 or 12 months. Discussing the results ofthese studies and especially the methodological problems when trying to get adequate information frompotential offenders resulted in a step further in the direction of asking citizens to report as potential
victims of crime. After a short time a fast growing practice of “victim surveys” developed.
Nevertheless the fact that victim surveys mostly concentrate on surveying traditional property
crime, violent and other street crime and have few or no relevance for measuring sexual aggression andespecially for intra-family violence (Van Kerckvoorde, 1986, 1995; Zedner, 1997), victim surveys havegenerally been accepted as “the least worse measure of crime” (Phipps, 1987). Step by step victim
surveys became important for victimology as a part of criminology. Victim surveys have been filled up
with questions concerning the different experiences of victims, the consequences of this victimization,
the reactions to the victimization by the police, the prosecutor, the judge and the attitude of potential
victims towards crime, insecurity in the neighbourhood and feelings of fear. Victim surveys become full
fledged instruments of victimological research and allow an extended victimographical analysis which
is much richer than a pure measurement of crime. However, crime analysis remains an importantfunction of the victim survey.
Special attention has to be given to the International Crime Victims Surveys introduced andcoordinated by the Dutch Ministry of Justice. They have been organised in 1989, 1992 and 1996 andhave the exceptional advantage that an important number of countries from different continents haveparticipated in its implementation.
4. Feminism and Victimology
Feminism is a political emancipative movement which had a decisive influence in the shift in thecontent of victimology in the seventies. Amir, a disciple of M. Wolfgang, provoked with his study on
forcible rape (1967) strong negative reactions from the side of the feminists. They defined that type ofvictimology as “the art of blaming the victim” (Clark and Lewis, 1977). The shift in the victimologicalthinking can be defined as an explicit orientation of victimology towards actions and interventions infavour of women-victims of sexual aggression, of intra-family violence and of rape. At the same time
there was the growing attention for the many ways of neglect, abuse and maltreatment of children. The
action oriented approach of the victim did hardly distinguish the ideological moment from the academic
one. Victimology was the same as victimagogy (Van Dijk, 1984). Theorists and empirical researchers
have been directly confronted with the social facts which stimulated research concerning the moral,material, physical and psycho-social consequences of the victimization (Martin, 1989). The thematicdevelopment of the cultural legitimation of the victimization of women unmasked the socio-cultural
justifications of physical violence against women as a part of the socialisation of men and the prejudicesamong police and justice personnel as its correlative (Weiss and Borges, 1973).
B. Victims and the Role of International Organisations
1. Victims and the Council of Europe
The victims' of crime interests and needs have been answered and taken care for from the earlyseventies in Europe as well in North America by local initiatives in which at the beginning feminist
inspiration and conviction have determined it's flavour and colour. From the eighties victim assistancemade its way under the wings of national umbrella organisations which acted as the partners of thegovernment. In Europe different national organisations started their international meetings as soon as1986 and founded a European umbrella organisation, “The European Forum for Victim Services”.
The Council of Europe has, already from an early moment, played a role in supporting thedevelopment of victim compensation schemes, of victim assistance and of orienting police and the191

RESOURCE MATERIAL SERIES No. 61
judiciary towards the problems of victims of crime. We consider this development as a dialecticalprocess in which the eminent and pro-active role of the Council of Europe has to be recognized. Taking
into account Resolution(77) 27 of the Committee of Ministers of the Council of Europe on thecompensation of victims of crime, the member states have been invited to sign the “European
Convention on the Compensation of Victims of Violent Crime” of November 24, 1983. While in somemember states there were already laws on victim compensation available (e.g. in Great Britain, The
Netherlands, France) and in other countries like Belgium the debate was still going on, the conventionfunctioned as a type of minimum standard for victim compensation. Countries lacking such aregulation have been strongly stimulated to introduce their own compensation scheme. Belgium
accepted a state compensation law for victims of intentional violent acts on the 1st of August 1985.
Another important initiative from the side of the Council of Europe is the foundation of a group of
experts which reported in an extensive way about its investigations and observations concerning thesituation of victims of crime in Europe (Council of Europe, 1985). This state of the art of the research on
the consequences of victimization has given a strong impulse to the communication among scientists
and policy makers. The publication offered a substantial basis of knowledge for the future scientificresearch and for the development of a victim policy in Europe. In 1985 the Committee of Ministers of
the Council of Europe adopted Recommendation R(85)11 concerning the position of the victim in theframe work of criminal law and procedure. In 1987 the committee of Ministe rs ad op ted
Recommendation R(87)21 concerning assistance to victims and the prevention of victimization.
2. The Role of the UNO
The ideas and concepts for a victim policy as developed by the Council of Europe since 1977,
translated in a convention and two recommendations, have also inspired the UNO. Thanks to the
preparatory work of the World Society of Victimology held in Milano in August 1985, the victims ofcrime problems have been introduced during the 7th United Nations Congress on the Prevention of
Crime and the Treatment of Offe nders. The General Assembly of the U NO adop te d therecommendation of the congress on the 29th of November 1985 (General Assembly Resolution 40/34).
The recommendation includes, like the convention and the recommendations of the Council of Europe, aplea for a better access for victims to the criminal justice system. There is a call for a more justtreatment, for the use of restitution, compensation and the development of psycho-social assistance.
More preventive measures are recommended against crime and against the abuse of power. Next to allwhat was already present in the European recommendations, the UNO-declaration opens a broader
perspective for the protection of victims of ideological, political and cultural abuse of power.
In the U.N. Standard Minimum Rules for non-custodial measures (the Tokyo-Rules, 1990), there isalso an explicit recommendation to care about the victims of crime when alternative (non custodial)
sanctions are imposed. The same concern about victims is included in the Council of Europe
Recommendation R(92)16 on community sanctions and measures.
3. The Role of the International Victimological Conferences, Societies and Revues
In 1973 I. Drapkin organised in Jerusalem an International Symposium during which scientificdiscussions and exchanges concentrated on the definition and the state of victimology and its relation tocriminology. Questions about the policy of victim prevention, victim restitution and victim assistancereceived broad attention. Similar meetings have been organised on a three yearly basis in Boston-USA(1976), Münster-Germany (1979), Tokyo/Kyoto-Japan (1982), Zagreb (1986), Jerusalem (1988), Rio deJaneiro-Brazil (1991), Adelaide-Australia (1994), Amsterdam-Netherlands (1997), Montreal-Canada(planned for the year 2000). During the International Symposium in Münster (1979) the World Society
for Victimology was founded. In 1976 Professor E. Viano at The American University in Washington
started the revue of “Victimology. An International Journal”. He has organised many international
victimological seminars and published the proceedings. The World Society of Victimology has publishedsince 1993 The International Review of Victimology and the proceedings of the different International
Symposiums.

192

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
C. The Impact of Victimization
1. The Fear of Crime
A first important remark is the fact that the theme of the fear of crime not completely coincides withthe problems of the consequences of victimization. Research has clearly demonstrated that it is anentirely new area of criminological inquiry. Zedner refers to research of Maxfield (1984), Garofalo(1979) and Skogan (1986) which confirms that “fear of crime is now recognized as a distinct social
problem extending well beyond those who have actually been victimized, to affect the lives of all those
who perceive themselves to be at risk” (Zedner, 1976, 587). Measuring crime by crime surveys, theconstruction of special prevention projects and neighbourhood watch, all seem to sharpen thesensibility for problems, especially among certain groups of the population taking into account the age,the gender, the neighbourhood and ethnic belonging. Zedner (1997) stresses in this context the so called
non rational fear of women. She refers to Stanko (1988) who says that women, more than it isdemonstrated by victim surveys, are confronted with “hidden violence” from the side of people theyknow, which is a more acceptable explanation of their fear.
2. Consequences of Victimization
The consequences of victimization are not easy to estimate on the basis of the seriousness of thecrime. Victim surveys have widely demonstrated that the majority of the people interviewed experienceno or few consequences following a victimization, since what happened is mostly not something very
serious. However qualitative studies demonstrate that in a limited number of cases the consequences
may be very serious also in the long run and difficult to survive and to cope with (Gottfredson, 1989;
Lurigio and Resick, 1990).
The characteristics of the victims, their behaviour and coping capacities, their possible experienceswith crime, even in the past and the eventual influence of other emotional problems are, combined withthe social context in which they live, the most important factors which determine the impact of thevictimization. However, the risks of far reaching consequences are in the first place dependent on typesof crimes such as murder, homicide, violence, abuse and rape. These crimes provoke almost always acumulation of effects ranging between the loss of life, serious physical damages, the loss of psychologicalintegrity and financial or other material consequences. Often these effects provoke an irreversible loss
or the quality of life for the victim and his milieu.
The results of research carried out by Maguire (1980) and Maguire and Corbett (1987) show thatthe impact of burglary is comparable with the effects of crimes of violence (feelings of intrusion andemotional upset) and of rape. The consequences of rape and other sexual crimes have been detected,
analysed and described in the context of initiatives by feminist groups in favour of victims. The attitudeof distance of these action groups in relation to government and governmental policy has, however,curtailed the development of scientific research in this area (Mawby and Gill, 1987; Mawby, 1992). A
mainly theoretical research which has described, analysed and discussed in great detail and in depth
the results of many different publications on victimization is the standard piece of work published by
Ezzat Fattah, “Understanding Criminal Victimisation”, of 1991. Victimization has been approached asa dynamic interrelational phenomenon and human experience.
D. Victims and the Criminal Justice System
Whereas the early victim movement in Canada and the USA has concentrated its actions on the
problems of the legal rights of victims and their position in the administration of criminal justice, thesame happened in Europe lately, during the nineties. However, there have been initiatives taken before
which forecasted already this interest.
1. State Compensation
Programmes of State compensation were introduced first in Great Britain (1964) and elsewhere
since the late seventies (e.g. in Holland and France). At this moment most European countries havefollowed these examples. These practices introduced by law aim at financial compensation for victims of(intentional) violent crimes in case the offender remains unknown or insolvent. Although remarkabledifferences exist between the many national systems especially when defining the group of victims who
may receive compensation and the maximum compensation, there are however clear points of

193

RESOURCE MATERIAL SERIES No. 61
resemblance. The most important one is that no one of these programmes gives the victim a formal
right to financial compensation. State compensation for victims of crime is based on the principle ofsolidarity. The financial compensation is a discretional decision of a commission which judges on thebasis of fairness. These principles have been consolidated also when some of the countries changed thelaw (some several times) in the direction of more flexibility towards the compensation (e.g. throughproviding an advance loan).
Critics remain everywhere almost the same. State compensation is a complex, long lastingprocedure leading to a successful result in a rather limited number of cases. Frustrating for victims are
the many administrative obligations, the uncertainty about the decision, the long lasting waiting andthe lack of information about the determination of the amount of the compensation. All this is added to
the frustration which many victims experience in their contacts with the police and the judiciary (court
system), the state compensation procedure is often a continuation of the 'secondary victimization'.
'Secondary victimization' as a concept refers to a continuation of negative experiences of the victim
following the first shock at the moment when the crime is committed. The way the immediatesurrounding of the victim, but especially official institutions, react to the “primary victimisation” often
provokes negative effects which may be more traumatizing than the initial crime experience. Thesephenomena are extremely important and belong to the total picture of the consequences. Research
focusing on the problems of secondary victimization has been the basis for the demand and theconstruction of a legal position for the victim in the procedures of criminal justice.
2. The Role of the Police and the Criminal Justice System
Depending on the type of crime, victims report their victimization between 20% (for sexual
aggression), 88% (for burglary) and 91.4% (for a stolen car) (figures of the International Crime Survey1992), it is evident from this that contacts with the police are of paramount importance. They are thegate keepers of the system. The access to justice for victims starts with contacting the police. That is
why these contacts have been in the center of the attention of victim policy since the eighties. The
European Recommendation R(85)11 concerning the victim in the framework of criminal law andprocedure explicitly discusses what should be done by member states at the level of the police, the levelof the prosecutor, the questioning of the victim and at the level of the court proceedings. The main
message is the duty of information. At all levels the access to information about the way the case ishandled is the basic expectation of all victims. During the last decade there has been a lot of work donein preparing, training, supporting the police and more recently prosecutorial services are concerned
about the way victims are received, treated, informed and when necessary referred to more specialised
services.
Recommendation R(87)21 concerning assistance to victims and prevention of victimization stresses
the need to coordinate the relations between victim assistance and the agencies of the criminal justicesystem. More recently Recommendation R(98)13 on intimidation of witnesses and the right of the
defence the accent is put on the development of appropriate legislative and practical measures toprotect witnesses, often the victims of crime, to be able to testify freely. Special attention is given to
problems experienced in relation to organised crime and in cases of crime within the family.
Especially at the level of the training of the police a lot of progress has been made. The general
opinion is that all police officers have to receive basic training about the way they work with victims ofcrime. Care for victims is everybody's concern in the system, not just the special duty of somespecialists.
E. Victims and Restorative Justice
1. A Response to Victims’ Needs
Research on victimization and the practice of victim assistance have revealed specific needs ofvictims in their relation to the offender (Dignan and Cavadino, 1996; Peters and Goethals, 1993;
Reeves, 1989; Young, 1996). For victims of violence, at least as important as obtaining financial
compensation is to find answers to questions concerning the offence and the offender. Victims in general
express a need of understanding about what happened and in many cases they wish to make clear to194

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
the offender the consequences of the crime. These elements are often important issues in coping withthe event and its aftermath. When questioned about the desirability and the possible consequences of ameeting and discussion with the offender, a significant group of victims confirm that they would like tomake use of such an opportunity. Several studies show figures between 30 and 50 per cent of all victims
interviewed, and this percentage is still higher when the possibility of indirect (not face-to-face)
mediation is offered (Aertsen and Peters, 1998).
Initiatives regarding mediation between victim and offender have been solicited by the above
mentioned Council of Europe Recommendations R(85)11 and R(87)21. The interest for mediation was inline with the content of the U.N. Declaration of Basic Principles of Justice for Victims of Crime andAbuse of Power (1985). Above all, we must refer to Recommendation R(99)19 by the Council of Europe
concerning mediation in penal matters. The recommendation recognizes, inter alia, “the legitimate
interest of victims to have a stronger voice in dealing with the consequences of their victimization, tocommunicate with the offender and to obtain apology and reparation”. One of the benefits of mediation
can also be that the victim “may get a more realistic understanding of the offender and his or her
behaviour”. Victim-offender mediation need not be limited necessarily to a diversion practice. Whereas
in victim assistance programmes the victim mainly stays in an external position vis-à-vis the justicesystem, mediation allows him or her to integrate his/her needs and interests into the criminal justiceprocess. “Mediation therefore shows that satisfying the interests of the victim, the offender and society atlarge is not incompatible. The conciliatory nature of mediation can assist the criminal justice system infulfilling one of its fundamental objectives, namely contributing to a peaceful and safe society, by
restoring balance and social peace after a crime has been committed.” (Commentary on the preamble of
the recommendation). The recommendation states that victim-offender mediation should be a service
available at all stages of the criminal justice process. Besides a definition of victim-offender mediationand the mention of some general principles, the recommendation deals with the necessity of a legal
basis for mediation, the relation to criminal justice and the operation of mediation services. Muchattention is given to the qualifications, selection and training of mediators and the development ofstandards of practice.
2. Victim-Offender Mediation Programmes
The recognition of specific victim issues, together with the search for a more meaningful andeffective way of working with offenders, led to the creation of victim-offender mediation orreconciliation programmes in many countries. After the first initiatives came about in Canada andsubsequently in the USA in the 1970s, at the beginning of the 1980s the movement spread to Europe.
This was visible first in Britain. However, it must be noted that some Nordic countries simultaneously
developed initiatives in a more or less independent way. Norway and Finland are now two countries
with an extensive mediation practice that in both cases strives for a volunteer model. Members of thelocal community are active in mediation – both in criminal and civil cases – and are supported by a paid
co-ordinator from the municipal services.
Whereas in Norway and Finland mediation has developed apart from probation and victim
assistance programmes, we find that in Austria, Germany and the U.K. probation services have taken
the lead in organising victim-offender mediation. Austria has played a pioneer role in developing a
mediation model for juveniles and has created a well-organised network of services for“Aussergerichtlicher Tatausgleich”. The largest number of mediation services, however, is found inGermany: some 300 services for “Täter-Opfer Ausgleich”, of which here also the large majority (260) aredirected to young delinquents.
The fact that in some countries offender-oriented services such as probation have been the driving
force behind the early developments has initially placed the victim movement in a somewhat defensive
position. Victim Support in England, for example, but also in the U.S., initially exhibited much
resistance to mediation. The fear was that the victim could be “used” in furtherance of the interests andthe treatment of the offender. As the practice of victim-offender mediation progressed and mediation
methods were tailored more to the needs of the victim, and research results about the positive effects
for the victim were made known, this resistance decreased. In France, victim support has played themost important stimulating role from the beginning in founding mediation services. In addition, in

195

RESOURCE MATERIAL SERIES No. 61
Belgium a mediation model has been developed for more serious crimes, with as a point of departure,with the focus being largely the needs of the victim.
Besides the above mentioned European countries where victim-offender mediation has undergone
the strongest development, other countries have taken initiatives in the form of pilot projects. Included
here are Denmark, Ireland, Italy, Luxembourg, the Netherlands, Spain and Sweden. Central and East
European countries in recent years have been active as well and started mediation programmes: forexample Albania, the Czech Republic, Poland, Russia and Slovenia.
A large majority of victim-offender mediation cases in the European countries concern relatively
minor property offences or less serious violence committed by juveniles who are mostly or often first
offenders. Violent or more serious crimes by adults or youngsters, however, are not excluded, and some
programmes focus especially on these types of cases (Aertsen, 1999). But it must be admitted that thequantitative impact of victim-offender mediation programmes in the different European countries
remains rather limited (Weitekamp, 1997).
In a number of European countries victim-offender mediation has received a legal basis, as a part of
the Juvenile Justice Act (Austria, Germany, Finland, Poland), the Code of Criminal Procedure (France,
Belgium, Finland, Poland), the Criminal Code (Germany, Finland, Poland), or as an autonomous“mediation law” (Norway).
Concerning the process and the effects of victim-offender mediation, much evaluative research data,
both of a quantitative and a qualitative nature, has become available (see, for example, Dünkel, 1996).
We cannot go into detail here, but the most important and promising findings concern the degree ofsatisfaction of the parties, the willingness to participate, the number of agreements reached and thecontent of the agreements, the compliance rates, the effect on re-offending, the work and time intensive
process of mediation and the cost-effectiveness.
3. Restorative JusticeThis new development of bringing together the victim and the offender often has been identified
with “restorative justice”. But the concept of restorative justice, as there is a growing consensus in thelast few years in literature and practice, is a broad one (Bazemore and Walgrave, 1999; McCold, 1998;
Wright, 1996). This concept, Anglo-Saxon from origin, is not restricted to a concrete method, aprogramme or a technique, but goes rather in the direction of a new paradigm or a global vision, a“changing lenses” (Zehr, 1990). What is meant here is the (pursued) development of another view, notonly of the social or criminal justice reaction that must follow a crime, but also and primarily of thenature of the crime itself. A crime is not seen so much in terms of violating abstract rules of law but
rather as a violation of persons and relations. Based upon this vision, the fundamental reaction is thenalso aimed at the restoration of the damage: the damage to the victims, their environment and possibly
to the wider society, and also the damage which the offender provoked in his own social surrounding.
For many “restorative justice” is a “third way” resolutely to be chosen in place of (neo) retributive
criminal law and after the collapse of the rehabilitation model (Peters, 1996; Walgrave, 1995).
A generally accepted definition of restorative justice is given by Tony Marshall in an overview ofrestorative justice published by the U.K. Home Office (Marshall, 1999): “Restorative justice is a process
whereby parties with a stake in a specific offence resolve collectively how to deal with the aftermath of theoffence and its implications for the future”. Or put another way: “Restorative justice is a problem-solving
approach to crime which involves the parties themselves, and the community generally, in an active
relationship with statutory agencies. It is not any particular practice, but a set of principles which may
orientate the general practice of any agency or group in relation to crime.” Also helpful in clarifying theconcept is the objective put forward in its standards by the British Restorative Justice Consortium(1998): “Restorative Justice seeks to balance the concerns of the victim and the community with the needto reintegrate the offender into society. It seeks to assist the recovery of the victim and enable all parties
with a stake in the justice process to participate fruitfully in it”.
From these definitions it is clear that “restorative justice” is not a movement alongside or against
the current criminal justice system. More and more voices can be heard to maximally integrate this196

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
approach within the existing criminal justice system in order to modify the foundations of the systemitself. A second clarification concerns the growing tendency to de-individualise restorative justice.
Where in the beginning restorative justice was strongly associated with victim-offender mediation, we
now see models that not only involve the two immediate parties to the conflict but also a number of
persons or bodies from their surroundings. Nevertheless, within Europe, victim-offender mediation isby far the most important expression of restorative justice. Group-oriented models of restorative justicesuch as “Family Group Conferences”, initially developed in New-Zealand and Australia, in 1999 are
only operating in an experimental way in England.
Restorative justice in Europe at present meets with at least three important challenges. The firstone is the threatening recuperation of this line of thinking into the dominant conceptions and methods
within the administration of criminal justice. A second challenge in the actual realisation of restorative
justice lies with the possibility of expanding victim-offender mediation to more categories of (alsoserious) offences and offenders and applying a victim approach in the successive stages of theadministration of criminal justice, including corrections and after-care. A third task concerns thefurther establishment of legal frameworks and safeguards and a clarification of the relation ofrestorative justice programme towards, or the position into, the criminal justice systems of the different
countries (Van Ness, 1999).
4. Mediation for Redress. A Belgian Example of Restorative Justice‘Mediation for redress’ started in 1993 as a local programme in Leuven and was extended to otherjudicial districts by the end of 1998. The programme deals exclusively with crimes of a certain degree ofseriousness and operates parallel to prosecution. The central objectives of the programme were initiallythe development of an appropriate methodology for mediation in serious crimes and the verification of
the effect of mediation on the sentencing process. The mediator focuses on in-depth communication andexchange (of information) between victim and offender. Through several separate contacts with victim
and offender, the mediator carefully prepares a direct meeting. The result of the mediation is laid down
in a written agreement, which contains all elements of the material and immaterial restoration. The
programme operates in a close relationship with the public prosecutor’s service and with theinvestigating judges, but the mediation itself is done independently from the judicial system. The
mediators are professionals and their work is organised and supervised by an independent local
steering committee, consisting of representatives of all partner-agencies. ‘Mediation for redress’ isrecognised as one of the ‘national pilot programmes’ for alternative sanctions and measures, which
implies full financing by the ministry of Justice. The programme is run by the Flemish nongovernmental organisation ‘Suggnomè’.
The total number of files in the experimental project ‘mediation for redress’ remains limited: 140
selected cases (files) in the period 1993-1997. This relatively limited number is due to the time
consuming mediation work in this type of case and the restricted staff (two full time mediators, novolunteers involved). In table 7 the types of cases are mentioned.
Table 7. Type of Cases in ‘Mediation for Redress’ (1993-1997)
N%

violent offences

69

49.3

property offences

57

40.7

sexual offences

14

10.0

total

140

100

When calculating the average number of contacts per file, excluding administrative contacts(making appointments, sending a first information letter, locating a person ...), we find the following
figures for 1997: 6 home visits per file; 1.4 meetings at the mediation office; 9.2 telephone contacts; 6.3
contacts by letter.

197

RESOURCE MATERIAL SERIES No. 61
Of all cases in ‘mediation for redress’, 50% result in a written agreement. The contents of these
agreements can be categorised as follows: information about the offence, its reasons and circumstances;the personal meaning of the facts and their consequences for the victim, the offender and theirsurroundings; each party’s (changed) perception of, and attitude to, the other party; the issues andpossibilities of reparation or compensation; the amount of financial restitution or the way material or
symbolic reparation should be done; the preferred reaction from the judicial system. Excuses can beoffered and accepted by the other party. The agreement can mention that the victim is prepared to drop
the claim for compensation.
Evaluation interviews, after a first experimental period, with involved victims and offenders
demonstrate a high degree of general satisfaction with mediation for redress. This result is congruent
with what was found in most evaluative research. The Leuven programme however showed thatmediation in more serious crimes is workable and that it puts specific elements in the communication
between the victim and the offender, and also that this kind of mediation offers opportunities toimplement a new relationship between the justice system and citizens.
IV. RESTORATIVE DETENTION – A BELGIAN PILOT PROJECT
Since the beginning of 1998 the pilot project 'restorative detention' has been active in six Belgian
prisons. In 2000, quicker than expected, the policy makers saw to it that the project 'restorative
detention' had 'taken root' in the global Belgian penal establishment. We will only briefly sketch thestart up and development of the project 'restorative detention'.
The project name itself, 'restorative detention', seems to embrace a contradiction in terms. It is also
clear that the introduction to and the underlying vision for such a 'provocative' project requires
explanation. That is done in the first part. The second part sheds light on a few aspects of the purposeof the pilot project. To provide the discussion of the project with more 'substance', we will then focus ourattention on a range of activities at the level of the prison. We will then conclude with a few
considerations.
A. The Contextual Framework of the Project 'Restorative Detention' 4This project did not appear out of the blue, but is situated within a research tradition and a policy on
criminality. On the one hand the project represents a 'logical' step in the development of the research
activities at the Katholieke University Leuven (KU Leuven) concerning mediation and restorative
justice. On the other hand external influences play a significant role in the genesis of this research
project. Continuous reciprocity between internal and external influences has given the project the form
it currently has.
1. The Internal Run Up to the Project
The initiative for 'restorative detention' came from the penology and victimology research group.
The somewhat strange sounding combination of punishment-oriented and victim-oriented research ispart of a tradition that spans 3 decades.
In the beginning the scholarly focus of the research group was on studies of the prison system,studies of punishment in general and also – as a forerunner to the present, attention was given to
restorative justice initiatives – the (too marginal) use of community sanctions was subjected to criticalreflection.
With the study and analysis of violent property crimes the need arose for victimological research.
Beginning in 1986, the victim-oriented approach attracted much attention. Both qualitative andquantitative victimisation studies brought into view the problematic position of the victim in theadministration of criminal justice. Especially victims of violent property crime were the focus. The
judicial marginality of the victim was one of the most important policy themes. One of the first Belgian
victimological handbooks received the title 'the reverse side of criminality' due in part to establishing
the neglect of the victim (Peters en Goethals, 1993).
4Peters, 2001

198

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
A shift in the approach taken in research occurred around 1990. Based upon the experienceobtained and findings in victimological research, beginning in the 1990s a more proactive approach wastaken. On one hand thematic development was initiated of new practices designed to meet the needs ofvictims. On the other hand an examination was made of how criminal prosecution practice can be
influenced and how the routine answers to criminality could be challenged.
The action research method implied a change in course in the approach to research. Action researchis concentrated on the development and evaluation of new practices and is also focused upon the finetuning or restructuring of existing practices. This allows the researchers to approach the criminal
justice system from a more problem solving point of view. At the same time, this method has also won
approval due to its inclusive character. Action research allows several (all) parties to be actively
involved in the (search for a) solution to the problem. This method was employed until the end of 2000,
also in the project 'restorative detention'.
Reflections concerning imprisonment led to the realization that while for many years prison had
appeared as a last resort in the government rhetoric, the actual practice revealed a completely different
picture. Many Western countries, led by the U.S.A., have been acquainted with the phenomenon of a'prison tree' for several years now (Cayley, 1998). The administration of criminal justice in Belgium isalso far from immune to the excessive use of the deprivation of liberty.
The stock in the Belgian prison system has increased by almost 40% in the last decade. The 1980s
were characterised by an average of approximately 6,000 prisoners. During the last 10 years this has
increased to approximately 8,500 prisoners. The flux decreased from around 22,000 prisoners per year
in the 1980s to 14,000 in the previous decade. From this it can be concluded that the average prison
sentence has increased significantly. Suspects are on remand up to 30% longer, while the group with thelongest prison sentences (more than 3 years) grows steadily. Thus by no means can we speak of prison
as a last resort. Actual practice in Belgium differs little from that in neighbouring countries.
Among the research group penology and victimology, the view is prevalent that to deal
constructively with criminality an appeal must be made to both the offender and the victim, and thatthe criminological and the victimological cannot be separated from each other. To that end, answers in
the direction of restorative justice constitute the initial pretext for action in the reaction to criminality.
Restorative justice is a remedy for a number of shortcomings in the 'retributive' criminal justice system,
which is strongly characterised by a profound dichotomy between offender and victim. This dichotomy
still receives its strongest manifestation in the prison. The societal exclusion of both victim and offenderconfirms this.
The research group has thus gradually evolved into an integral restorative justice approach tocriminality. For the moment, the project 'restorative detention' is here a final link. When imprisonmentis unavoidable, then the means must still be made available to victim, imprisoned offender and thebroader societal context in which they are located, to search for a constructive problem solving
approach. In other words restorative justice may not be allowed to end with punishment or at the wallsof the prison.
2. External Motivation
The start-up of a project in which restorative justice penetrates the furthest corners of the criminal
justice system, can be seen as the ultimate test for the restorative justice movement. Such an enterprise
only has a chance of success against the background of a policy on criminality that is favourably
disposed to restorative justice. Here a short clarification of a few of the steps in restorative justicethinking in the context of Belgian criminality is appropriate.
Before the Dutroux affair took hold of Belgium, the then Minister of Justice had injected new life
into the government's discourse on punishment. With his 'Orientation Memorandum on Penal andPrison Policy' of 19 June 1996, the wind suddenly changed directions. The ministerial memorandummade clear the basic objectives of imprisonment (ensuring safe and dignified punishment; preparation
for reintegration and the prevention of relapse) and subsequently associated itself with the ideas ofrestorative justice.

199

RESOURCE MATERIAL SERIES No. 61
This important document allows us to deduce that restorative justice thinking is slowly but surely
seeping into government discourse. For that matter, the present Minister of Justice also considers
restorative justice of paramount importance. In the 'Federal Safety and Detention Plan' of 31 May 2000
he endorses the view that the criminal justice system, including the prison system, must have arestorative orientation across the board.
At all levels of the criminal justice machine for that matter, the cogs are beginning to demonstrate
an affinity for victims. And although the Dutroux affair as a catalyst has quickened certain
developments, many victim-friendly initiatives saw the light of day before August 1996. Thus article 46of the Act of 5 August 1992 on the Duties of the Police, for the first time in the history of Belgian police
legislation mentions the task of assisting the victims of criminal offences. The Act of 12 March 1998
improved the position of the victim at the level of the investigation and judicial inquiry. The search for
new regulations concerning parole was also begun before the Dutroux crisis, but it certainly received aboost from it. The acts of 5 and 18 March 1998 put into force a more victim-sensitive arrangement forparole. As already mentioned, a victim must be informed if the offender requests parole. Also the Parole
Commissions may consult the victims in reaching a decision regarding the granting of parole.
This enumeration of shifts in policy on criminality provides the framework in which the project'restorative detention' saw the light of day. At the same time it demonstrates the setting of the project ina changing approach to punishment. In addition, a number of foreign restorative justice initiatives havealready found their way to the 'society of captives'. Among others, the Wiedergutmachungsprogramma of
the Swiss penitentiary of Saxerriet and certain Victim Offender Reconciliation Programmes (VORPs) in
Canada, England and the U.S.A. provided examples of a restorative justice approach that transcended
the prison walls.
The project 'restorative detention' has developed its own character precisely due to the important
link with and reciprocity between policy and research.
B. The Purpose of the Project 'Restorative Detention'
Before making the jump to the action research, restorative justice still needs some conceptual
clarification. A strong definition comes from the hand of Tony Marshall (1998): “Restorative Justice is aprocess whereby parties with a stake in a specific offence resolve collectively how to deal with theaftermath of the offence and its implications for the future”. Restorative justice can thus be understoodas “the interaction between offender, victim and society, in which all parties make an effort and an
investment in order to arrive at a certain level of pacification via communication”. The local community,
the broader society and the societal institutions (as representative of the society) may be constructively
involved in this.
Central to the pilot project is the search for an answer to the question concerning how punishment
in general and the prison context in particular can contribute to a more just and more balanced
administration of criminal justice for offender, victim and society. This central issue can be reduced tothe challenge to give imprisonment a more victim-focused and restorative justice orientation.
The project took the form of action research. The point of departure was always the specific context
of each penal institution. The action research was carried out in 3 Dutch-speaking prisons in Belgium.
The researchers required a good view of the operation of 'their' respective institutions, before proposing
focused initiatives. Each of the three Dutch-speaking prisons thus functioned as an experimental site
for concrete restorative justice initiatives. And that brings us to the importance of the method used.
In action research, the two dimensions of action and research are connected to each other like
Siamese twins. The 'action' dimension is aimed at the phased or cyclical implementation of change. The
research dimension is focused upon both the procedure and the result. The action is regularly evaluatedand fine-tuned if needed. Action research thus makes it possible to react quickly to changing situations.
Not only does regular reflection on the action taken form an integral part of this approach toresearch, but the interaction between theory and practice also contributes to a process of theory
formulation. The research has a direct impact on the actors in the field (e.g., prisoners, victims and200

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
prison personnel). They are able to gain new (learning) experience, which then affects the agogic aspectof action research.
C. Activities at the Level of the Prisons
In order to constructively influence the prison context, all aspects of the 'prison community' need tobe addressed. Essential here is a restorative justice prison culture in which not only a few key figures
are involved but in which restorative justice is supported by all aspects of prison life.
From this follows the importance of the initiatives with respect to prison personnel. This constitutes
the subject matter of a first point. Prison personnel make a large contribution to the success or failureof 'restorative detention'.
A second sub-section shifts the accent to the prisoners. Several activities designed to stimulate
responsibility appeal to the prisoners regarding their (potential) perception of and processing of guilt.
The accomplishment of this includes ensuring the presence of a victim dimension in the punishment.
Moreover, restorative justice may not be an isolated event. This implies a deliberate linking of the
project to the periphery of the prison, the 'outside world'.
A final point of interest focuses upon a specific issue, namely the financial problems of prisoners(insolvency, impoverishment, debts, fines, legal costs, the civil action settlement and the lack of possible
remedies). It is not without reason that this problem has received much attention.
1. Education of Prison Personnel
For restorative detention to have any chance of success, personnel from all prison departments mustbe personally and constructively involved. During the first years of the action research project, muchattention and energy also went into the education of personnel in the three pilot prisons.
The first steps of the project can be reduced to an introduction to the theme 'restorative justiceduring detention'. Providing information and sensitising prison personnel was given form in various
ways. In the three pilot prisons much importance was attached by the project workers to informal
contacts with prison personnel. At the same time, somewhat formally, information days were organised
and introductory texts drawn up. Information was disseminated via the existing channels as much as
possible (for instance via an internal newsletter, an existing study group,…).
Demand quickly surfaced for more information regarding victimisation and restorative justice. An
educational programme 'victims and restorative justice' was the answer to this. This course had 4
objectives. First and primarily the programme should provide prison personnel with the knowledge andinsight concerning the issue of victimisation. The development of restorative detention was also
explained regarding vision, objectives and methods. A third objective to this extra programme wasproviding a forum for discussion and reflection concerning the issue discussed. In addition, the course
provided a good opportunity to explore and stimulate the interest, openness and readiness to takeaction among prison personnel.
The educational programme 'victims and restorative justice' consisted of three different parts.
Regarding methodology the choice was made to make the theoretical explanations as lively as possible.
Thus among other things victims came to testify. The evaluation forms that the participants filled inafter the course indicated that it was precisely this testimony that made the greatest impression.
'Victims and restorative justice' was able to count on an enthusiastic audience. Yet the researchers
chose to change this course. The unilateral introduction of (more) victim sensitivity to prison personnel
contained a possible negative effect, a more repressive attitude with respect to prisoners. Anothermotivation for changing the focus comes from E. Fattah (1991). He states that “yesterday's victims aretoday's offenders and today's victims are tomorrow's offenders”. Moreover, restorative justice consists
precisely in bringing together both dimensions, victim and offender. “It is important that in addition toa victim focus, there is also an offender focus and that personnel deal respectfully with prisoners”. The
course was also then renamed 'offenders and victims'.

201

RESOURCE MATERIAL SERIES No. 61
The Psychosocial Service also underwent a degree of reorientation with this project. The
Psychosocial Service is responsible for detention guidance and until recently has been focused
exclusively on the world of the offenders. It is not easy within this offender-focused world to obtain a
victim-oriented dimension in dealing with individual prisoners. For them it indeed comes down to
introducing the victim dimension without harming the trust – or at least the level of cooperation withthe prisoners.
The staff members of the Psychosocial Services in the three 'restorative detention' experimentalsites thus also had questions concerning methodological support. This has led in the first place to thedevelopment of an educational programme based upon the contextual therapy of Nagy. Furthermore a
training session on systems theory provided an opportunity for a response to the methodologicalchallenge.
To provide the Psychosocial Service staff with an instrument that allows incorporating theperspective of the victim in working with the offender, an appeal was made to a fundamental attitude incontextual therapy. Multilateral bias locates a person within the context and the relations in which s/helives. This framework allows the social worker to alternate between positions of bias for his or her client
and bias for other parties.
A contextual therapist led a three-day training programme for the Psychosocial Service staff
members of each of the three prisons. In addition a day was also organised around the theme'Introduction to multilateral bias'. These programmes were also open to social workers from the judicial
social work sector who assist offenders, and to social workers who assist victims.
Systematic thinking provided another framework to integrate the newly introduced victim
dimension into offender-focused activity. In systems theory the person is seen as a junction of relations
imprisoned within a complex of communication systems, various meaning-giving systems and social
expectations.
For three half-days, a staff member of the Interaction Academy provided commentary and answers
were sought to pressing questions.
Both training programmes, given in 1999, brought with them additional requirements. By
improving the recognition of psychological problems among prisoners, referrals could be more focused.
But precisely here was the rub. The counsellors were not sufficiently aware of the therapeutic offerings
available. Furthermore, the need also arose for skills training to motivate the prisoners to make use of
the therapeutic offerings.
2. Activities for Prisoners
The essence of imprisonment lies in the fact that the basic right to move where they want and toparticipate in a self-selected part of society is taken away from people.
Imprisonment can then also be best described as 'a total sanction'. A series of 'processes ofmortification' attack the identity of the prisoners in a thorough way. Their environment is reduced tothe immediate prison context.
The introduction of the victim and the community leaves the door open to prisoners for processing
what has happened and taking up responsibility. To throw the door to restorative justice wide open,
structural aspects of the Belgian prison system need to be readjusted. This was already moderately
seized upon in the action research. A number of initiatives already provide prisoners with thepossibility to give their punishment a restorative justice touch.
In the first year of the action research, the approach to the prison personnel was at the center. Onlya few sporadic activities took place with the prisoners. Via the Leuven Auxiliary prison newsletter andin a presentation to the central group of prisoners at the Hoogstraten Penal Educational Center,
restorative justice and the role of the project worker/researcher were introduced. At the same time,education on victimisation and the needs of victims was organised. In Leuven Auxiliary there was a202

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
discussion evening held on mediation for redress. Using role-playing, the 15 participating prisoners
received an experiential interpretation of empathy and victim perception. Other offender-oriented
initiatives concerned a discussion evening with volunteers from the Victim Support Service, making
juridical office hours available to prisoners and initiating the course 'The Portrayal of the Victim'.
In 1999 and 2000 the level of activity with the prisoners was increased. After a first year ofoperation, the time was ripe to approach the prisoners in a more focused way. Thus to provide
information to as many prisoners as possible and to increase sensitivity, attention was in the first place
firmly focused upon providing both general and specific information. Posters and brochures relating to'restorative detention' were disseminated in each of the three trial prisons. This gave prisoners
immediate access to information concerning the project. Via information evenings, specific information
was provided on topics that included the redress fund, civil action and mediation for redress.
Furthermore, the action researchers tried to sensitise prisoners by showing and discussing films withthemes such as victimisation, the needs of the victim and restorative justice.
Secondly, the juridical office hours were the subject of further follow-up. This met a number of basic
rights of the prisoners, more specifically, the right to information regarding their juridical situation,
while juridical advice and procedural assistance was also provided for.
Parallel to the personnel training, prisoners were given the opportunity to become acquainted, in a
non-confrontational way, with the experiences of victims. In 1999 the course still bore the name 'victims
and restorative justice', but the following year this programme received the name 'offenders andvictims'. This shift in accent was here motivated by the fact that it was also desirable to give prisoners
the space to be able to reflect on their own life and experiences and on their own victimisation.
With respect to content, the course consisted of examining and discussing a film on themes aroundthe issue of victimisation. Video testimony and the contribution of a volunteer from the Center forVictim Support increased the impact of the programme. This programme was open to all prisoners.
The two-day workshop 'victims and restorative justice' emphasised the importance of the dialogue
between the prisoner and his victim, while also underscoring the importance of dialogue between theprisoners and the criminal justice system. This rather short workshop had a higher level of intensity
and more selective entrance qualifications.
An increase in knowledge and insight on the one hand, and stimulating the ability to empathize on
the other, were the primary objectives. At the same time communication skills were emphasised andthe workshop attempted to stimulate a change in attitude with respect to victims and restorative
justice.
The first day of the workshop included an introduction, a proposition game, looking for associations
with the word 'victim' and a reflection on one's own experience as victim. During the second day, a police
officer explained the restorative justice approach at the police department and victims testified
regarding their experiences and needs. Evaluations by the participating prisoners and victims indicatethat the workshop was always held in high esteem.
Then we focused our attention on the intensive course 'The Portrayal of the Victim', a course thatasks much of its participants. This was organised for the first time in 1998 at Hoogstraten Penal
Educational Center, but during the following project year the course was also given at the two otherproject prisons.
Before prisoners may participate in 'The Portrayal of the Victim', an admission interview takes
place. Thus each prisoner is evaluated regarding his suitability and motivation regarding the course.
The course 'The Portrayal of the Victim' generally covers 7 days. There are phases. First comes theacquisition of knowledge and insight, then the strengthening of the ability to emphasize. A third phase
is focused upon bringing about a change in attitude among the prisoners. The consciousness-raising of
the offender regarding the effects of his or her offence functions as leitmotiv throughout the threephases of 'The Portrayal of the Victim'. To that end use is made of newspaper cuttings, video203

RESOURCE MATERIAL SERIES No. 61
testimonies, group discussions, discussions with guest speakers up to and including the writing of aletter to the victim.
3. Working at the Periphery of the Prison or 'Introducing Society''Restorative detention' as a project, and since the Ministerial Circular of 4 October 2000 as a new
objective of prison praxis, will only succeed if supported by 'the outside world'. The project must thenalso strive to stimulate interaction between the prison milieu and 'the outside world'.
In discussing the periphery of the prison, two major components are relevant. On the one hand
there are a number of external services for (forensic) social work and work in socio-cultural education,
whose contribution within the framework of a more restorative justice oriented detention can besignificant. On the other hand, possibly more significant, 'fellow citizens from free society' can become
involved with the project. We will discuss both components.
Already before the pilot project there was of course collaboration between the internal prison
Psychosocial Services and external social services. This collaboration received an enormous boost byadding the victim to the picture at the level of the punishment. Indeed, until then care for the victim
and a client-centric treatment of the offender were strangers. Via this project the researchers werecharged with the task of finding initiatives to bridge the gap. This task is now further filled in by the
restorative justice consultants.
During the first project year, the main goals were bringing the social workers 'from within' and'from without' in contact with each other, informing them as much as possible, allowing them to reflect
on the project, its positioning, the methodological and deontological problems and obstacles and to
search for feasible forms of collaboration.
A consultation platform provided the required space to sensitise the relevant actors, to assess theirattitude regarding restorative detention and to achieve feasible forms of collaboration. Partners incommunication around this consultation table were the Psychosocial Services of the involved prisons,the directors of the Psychosocial Service at the level of the Directorate-General of Penal Institutions,the services for Victim Attention at the offices of the public prosecutor and the centers for Victim
Assistance.
Social workers dealing with victims and counsellors of prisoners quickly experienced the need formethodological support. In this respect it was already indicated that a search was underway in the fieldof contextual therapy and in systems theory. Both approaches were explained by externalorganisations. Here again reference can be made to the 'open' character of this educational activity.
Thus the three-day training on contextual thinking was followed by two mixed groups, namely on the
one hand the Psychosocial Service workers from the pilot prisons and a group of social workers who
work with offenders from the community and on the other hand a number of social workers who deal
with victims.
Several 'external' organisations were mobilised primarily to tackle the issue of debt among
prisoners. This is treated in more detail below, but it can already be stated here that the project
constitutes a significant bridge between the prison and the Public Social Welfare Center. Thanks to theSocial Stimulus Fund, beginning September 2000 a social worker has been working on the debt issue
half time at Leuven Auxiliary.
The reciprocal communicative repositioning of offenders, victims and society is a objective that in
the course of the project was realised by concrete initiatives designed to bring 'people from outside' intouch with the prison world.
At the start of the project, the Hoogstraten Penal Educational Center was the experimental site par
excellence to bring 'society' inside. The Penal Educational Center indeed enjoys a strong reputation
regarding regime and a tradition of volunteer help. The first initiative brought volunteers from a
Center for Victim Support to the Hoogstraten Penal Educational Center. After this followed two
discussion evenings between prisoners, prison personnel (the board, Psychosocial Service and prison

204

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
officials) and visitors. Each discussion was a window into the world of the discussion partner. Contrary
to the often-heard cry for more severe punishments and the complaint about prisons being three star
hotels, many volunteers were impressed with the prisoners' stories. In the evaluations of theseevenings, only positive reactions were heard from all corners.
The following year a further step was taken. The group of volunteers from victim support was
expanded to include teachers, persons from youth protection, punishment mediators, a lawyer, police
officers and some ten direct or indirect victims. Concerning the participants from the prison system, it
seemed more interesting (at least based upon the evaluation) to involve a number of prison officials andprisoners. The participating parties were prepared for the discussion evening. The evaluations
indicated again that the initiative was well received.
A final initiative worthy of mention concerns the layout of an information brochure on various
aspects of the prison sentence. The inspiration for this came from Canada, where the brochure'Questions and answers on the prison system and parole' has been used since 1993.
The brochure has a two-fold purpose: meeting the need for information on the part of the victims ofthe crimes for which the offender is behind bars, and sensitising and broadening the outlook of victims.
A survey informed the researchers about the most important themes of specific interest to the victims
in connection with the punishment. The surveys revealed that victims desire more information on the
differing conditions relevant to the punishment and especially on the decision concerning the early
release from prison.
In a press conference on 20 October 2000, the Minister of Justice presented the brochure “When theoffender disappears behind bars ...What to expect as victim?”
4. The Issue of Debt Among Prisoners
In our modern society the prevailing method to quantify damage is in terms of money (loss of
income, work disability, value of stolen articles). While in the personal experience of victims certain
losses are irreplaceable (due to the high emotional value attached to them), in the official discourse
everything receives a monetary value. This is also the case with criminal offences.
When a person who commits an offence is convicted by the criminal judge to the payment ofcompensation to one or more civil parties, then the offender is obliged to pay this compensation. Given
that it concerns a civil conviction, in the settlement of this payment, the rules of civil law apply. Central
here is the principle that ‘debt payment is feasible’. If the convicted person does not spontaneously pay,
the aggrieved party must then take legal steps to force payment.
From the beginning of the project 'restorative detention' a number of important decision makers
have emphasised that payment of compensation is a form of restorative justice. The researchers
themselves underlined the fact that the payment of the civil action settlement can be only a part ofrestorative justice activity, and that compensation implies a sign of admission only if it is also the resultof commitment on the part of the prisoner. Similar views constitute the foundation for the initiatives
concerning civil action.
When the researchers in the three trial prisons also involved the civil action in their approach, anumber of bottlenecks were quickly identified. These were brought together in a 'civil action bottleneck
memorandum'. Payment of the civil action settlement from prison is problematic, if only because
prisoners are poorly or not at all informed of their civil sentence. Furthermore, reference can also bemade to the insolvency of many prisoners, the high rate of unemployment in the prisons and the lowsalary levels. In addition, prisoners often have other debts to pay and in their eyes the support of theirown family is often a higher priority.
The attention paid to these problems is thus fully justified. We will successively examine two
initiatives that address a number of aspects of the debt issue. First the redress fund and then we will
focus attention on the 'debt settlement' project.

205

RESOURCE MATERIAL SERIES No. 61
Redress oriented working within the prison context means, among other things, the creation of
possibilities for prisoners to assume their responsibilities. The project 'restorative detention' checked
whether it might not be possible, to establish a fund for prisoners. After a preliminary investigation, thenot-for-profit organisation Welzijnszorg (Care for Welfare) came forward as sponsor for a fund and a'redress fund committee ' was established that would handle the preparations required to finally start a
redress fund.
The committee decided to locate the redress fund with the not-for-profit organisation Suggnomè.
The reasons behind this are easy to understand. It seemed better that a neutral external organisation
decide upon the admissibility of an application.
The fund is meant to provide prisoners with the possibility for some degree of rapprochement with
their victim. The amount that can be granted remains limited to half of the amount owed, with a ceilingof 1,250 EURO. This limitation is after all in line with the principles of restorative justice. The firstobjective of the redress fund is the promotion of communication between prisoner and victim. The limit
emphasises the symbolic significance of the repayment, not the immediate paying off of the civil action
settlement.
If a prisoner wishes to appeal to the fund, she can submit an application to that end to thecommittee. When the committee approves an application, the prisoner must perform a number of hours
of community service in exchange for the money.
If the committee gives its blessing, a mediator is appointed who will submit the proposal to thevictim. The decisive voice lies finally with the victim. If a positive answer is forthcoming from this side,
the prisoner may begin the community service. The prison must do all that is required to make thecommunity service possible.
If the prisoner completes the community service successfully, the committee will pay the amountagreed to the victim. If both offender and victim desire direct contact, this can be organised by the
mediator. Further settlement of the balance of the debt can also be arranged in an indirect way by the
mediator.
To date the redress fund remains framed in an experimental setting. An attempt is made to engage
as many prisoners as possible in the making and distributing of folders, the organising of information
evenings and the hanging of posters. The initial findings provide a completely positive picture of thisinitiative.
Another activity strikes back at the entire burden of debt borne by prisoners. An initial requirement
in tackling one's own debt is to obtain an overview and to come to grips with it. In the Auxiliary Prisonof Leuven there was the desire to make the burden of debt manageable and to include the civil action
settlement in the list of debtors. But managing the debt, negotiating with creditors and the drawing up
of payment plans is an almost impossible task for the staff members of the Psychosocial Service.
This was the occasion for initiating a 'debt settlement' project that was a bridge to the Public Social
Welfare Center of Leuven. The intent was to work out whether it was possible from prison to managedebt, negotiate with creditors and draw up payment plans.
Within the framework of the 'debt settlement project', the Public Social Welfare Center actuallytakes upon itself the assistance and education at the level of the individual. In addition to individual
assistance, there is also an educational package that treats themes connected with budgeting. It is after
all the intent to provide prisoners with sufficient instruments to manage their budget as independently
as possible.
V. A FEW CLOSING REMARKSThis broad ranging and yet still superficial – i.e. too selective – description of the project 'restorative
detention' perhaps leaves the impression that the penal context itself does not have many problems.

206

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
With a prison system derived largely from the 19th century, we encounter enormous structural
shortcomings. Most Belgian prisons were built according to the philosophy of cellular confinement. Toomany of these old buildings must still be modified to finally allow elementary comforts such as runningwater and a toilet in the cell. Moreover, due to this history, possibilities to organise communal activities
are often lacking. A considerable number of prisoners spend more than 20 hours per day in their cell.
That also the Belgian prison system continues to suffer from a crisis of legitimacy (Peters andGoethals, 1981) can best be understood when one realises that within the last decade alone the prison
population has increased by 30%, while work continues on initial basic legislation regarding theprinciples of confinement that safeguard the basic rights of prisoners.
At this moment the restorative justice consultants already have ample knowledge of prison praxis.
They are charged with an enormous task in which expectations are equally as great. That is why they
are always able to count on support from the universities. But the research teams have few ready-madeanswers. The actual position of 'restorative justice' in Belgian 'detention' situations must gradually
receive form in collaboration with restorative justice consultants and research teams.
REFERENCES
Aertsen, I. and Peters, T., ‘Mediation for Reparation: The Victim’s Perspective’, European Journal of
Crime, Criminal Law and Criminal Justice, vol. 6/2, 1998, 106-124.
Aertsen, I., ‘Mediation bei schweren Straftaten – auf dem Weg zu einer neuen Rechtskultur?’, inMediationsverfahren: Horizonte, Grenzen, Innensichten (Jahrbuch für Rechts- und Kriminalsoziologie),
Pelikan, C. (ed.), Baden-Baden, Nomos Verl.-Ges., 1999, 115-138.
Aertsen, I., Victim-offender mediation in Belgium: legal background and practice (unpublished paper).
Seminar on victim-offender mediation, Popowo, Poland 1998.
Amir, M., ‘Victim Precipitated Forcible Rape’, Journal of Criminal Law, Criminology and Police Science,
1967, 4, 493-502.
Amir, M., 'Patterns of forcible rape', Chicago, Ill. University of Chicago Press, 1971.
Ash, M., ‘On Witnesses: A Radical Critique of Criminal Court Procedures’, Notre Dame Lawyer, 1972,
48, 386-425.
Bazemore, G. and Walgrave, L., ‘Restorative Juvenile Justice: In Search of Fundamentals and an
Outline for Systemic Reform’, in: Bazemore, G. and Walgrave, L. (eds.), Restorative Juvenile Justice:
Repairing the Harm of Youth Crime, Monsey, Criminal Justice Press, 1999, 45-74.
Cayley, D.,The Expanding Prison. The Crisis in Crime and Punishment and the Search for Alternatives,
House of Anansi Press Ltd., 1998, 15- 88.
Clark, L., and Lewis, D., ‘Rape: the Price of Coercive Sexuality’, Toronto Womens Press, 1977.
Demet, S., Opschorting, uitstel en probatie. In: Meyvis, W. e.a.: Alternatieve maatregelen en straffen.
Penologisch vademecum. Heule, UGA 1998, 79-105.
Dignan, J. and Cavadino, M., ‘Towards a Framework for Conceptualising and Evaluating Models of
Criminal Justice from a Victim’s Perspective’, International Review of Victimology, 1996, vol. 4, 153-182.
Dignan, J. and Cavadino, M., Which model of criminal justice offers the best scope for assisting victims
of crime? In: Fattah, E. and Peters, T. (Ed.): Support for crime victims in a comparative perspective,
Leuven, Leuven University Press 1998, 139-168.

207

RESOURCE MATERIAL SERIES No. 61
Dünkel, F., ‘Täter-Opfer Ausgleich. German experiences with mediation in a European perspective’,
European Journal on Criminal Policy and Research, 1996, n 4.4., 44-66.
Dünkel, F., Krainz, K. en Wurger, M., ‘Victimization and Incidence of Delinquency, an International
Comparison, in Kaiser, G., Kury, H., Albrecht, H.J., (ed.), Victims and Criminal Justice, Freiburg, 1991,
883-929.
Ellenberger, H., ‘Relations Psychologiques entre le Criminel et sa Victime’, Revue Internationale deCriminologie et de Police Technique, 2, 1954, 1 a.f.
Fattah, E. and Peters, T., Support for Crime Victims in a Comparative Perspective. A Collection of Essays
Dedicated to the Memory of Prof. Frederic McClintock, Leuven, Leuven University Press, 1998.
Fattah, E., ‘Restorative and Retributive Justice Models - A Comparison’, in: Kühne, H. (ed.), Festschrift
für Koichi Miyazawa, Baden-Baden, Nomos Verlagsgesellschaft, 1995, 305-315.
Fattah, E., ‘Some Recent Theoretical Developments in Victimology’, Victimology, 1979, 4, 2, 198-213.
Fattah, E., ‘The United Nations Declaration of Basic Principles of Justice for Victims of Crime andAbuse of Power’, in: Fattah, E. (ed.), Towards a Critical Victimology, London, MacMillan, 1992, 401-424.
Fattah, E., ‘Victims and Victimology : The Facts and the Rhetoric’, International Review of Victimology,
1989, 1:43-66.
Galaway, B. and Hudson (eds.), Perspectives on Crime Victims. St. Louis: C.V. Mosby, 1981.
Garafalo, J., ‘Victimization and the Fear of Crime’, Journal of Research in Crime and Delinquency’,
1979, 16:80-97.
Garcia-Pablos, A., Manual de Criminologia, Espasa Calpe, Madrid, 1988.
Hindelang, M., Gottfredson, M. R., and Garafalo, J., ‘Victims of Personal Crime: An EmpiricalFoundation for a Theory of Personal Victimization’, Cambridge, Mass.: Ballinger, 1978.
Hough, M., Taking Account of Crime : Key Findings from the Second British Crime Survey, London:
HMSO, 1985.
Johnson, J., a.o., ‘The Recidivist Victim: a Descriptive Study’, Criminal Justice Monographs, Sam
Houston State University, Huntsville, Texas, 1973.
Knudten, R.D., Meade, A., Knudten, M. and Doerner, W., ‘The Victim in the Administration of Criminal
Justice: problems and perceptions’, in McDonald, W. (ed.), Criminal Justice and the Victim, London,
Sage Publications, 1976, 115-146.
Lauwaert, K., De strafrechtelijke geldboete. In: Meyvis, W. e.a.: Alternatieve maatregelen en straffen.
Penologisch vademecum. Heule, UGA 1998, 107-124.
Lauwaert, K., De vrijheid of invrijheidstelling onder voorwaarden. In: MEYVIS, W. e.a.: Alternatieve
maatregelen en straffen. Penologisch vademecum. Heule, UGA 1998, 59-78.
Lurigio, A.J. and Resick, P.A., 'Healing the psychological wounds of criminal victimization: predicting
postcrime distress and recovery', in Lurigio, A.J., Skogan, W.G. and Davis, R.C. (eds.), Victims of crime:
Problems, Policies and Programmes, Newbury Park, C.A.: Sage, 1990.
Maguire, M., ‘The Impact of Burglary upon Victims’, British Journal of Criminology, 1980, 20, 3:261-75.

208

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Maguire, M., Corbett, C., ‘The Effects of Crime and the Work of Victim Support Schemes’, Aldershot
Gower, 1987.
Marshall, T., Restorative Justice. An overview, London, Home Office, 1999.
Marshall, T., Restorative Justice. An Overview, unpublished, 1998, 1.
Martin, D., ‘Le Mouvement d’Aide aux Victimes en Belgique Francophone: Tendances, Problèmes
Actuels et Perspectives’, Revue de Droit Pénal et de Criminologie, 1989, 787-807.
Mawby, R. I., and Gill, M. L., Crime Victims: Needs, Services and the Voluntary Sector, London:
Tavistock, 1987.
Mawby, R. I., and Walklate, S., Critical Victimology, London: Sage, 1994.
Maxfield, M. G., Fear of Crime in England and Wales, HORS 78, London: HMSO, 1984.
Mayhew, P., and Aye Maung, N., ‘Surveying Crime: Findings from the 1992 British Crime Survey’,
HORS Research Findings No. 2, London: HMSO, 1992.
Mayhew, P., and Aye Maung, N., Elliot, D., and Dowds, L., The 1988 British Crime Survey, London:
HMSO, 1989.
Mayhew, P., and Aye Maung, N., Mirrlees-Black, C., ‘Trends in Crime: Findings from the 1994 British
Crime Survey’, HORS Research Findings No. 14, London: HMSO, 1994.
McCold, P., ‘Restorative Justice - Variations on a Theme’, in: Walgrave, L. (ed.), Restorative Justice for
Juveniles. Potentialities, Risks and Problems, Leuven, Leuven University Press, 1998, 19-53.
Mendelsohn, B., 'Une nouvelle branche de la science bio-psycho-sociale: victimiologie', in Revue
Internationale de Criminologie et de Police Technique 1956, 11 (2), 95-109.
Mirrlees-Black, C., Mayhew, P. and Percy, A., The 1996 British Crime Survey. London, HMSO, 1996.
Peters, T. and Goethals, J., "De legitimiteitscrisis van de gevangenisstraf" [Imprisonment's crisis oflegitimacy] , Streven, 1981, 316- 327 and 364- 365.
Peters, T. en Goethals, J. (eds.), De achterkant van de criminaliteit. Over victimologie, slachtofferhulp en
strafrechtsbedeling, Antwerpen: Kluwer Rechtswetenschappen België, 1993.
Peters, T., ‘Probleemoplossing en herstel als functies van de straf ’, Panopticon, 1996, 555-569.
Peters, T., Restorative Prisons: A Belgian Practice, a paper presented at the 5th International
Conference on Restorative Justice, Leuven, 16-19 September 2001, 24 p.
Phipps, A., Criminal victimisation, Crime Control and and Political Action, Middlesex Polytechnic(Ph.D. thesis), 1987, 604.
Pieters, F., De alternatieve straffen en maatregelen in de Oriëntatienota. In: Peters, T. en Vanacker, J.:
Van Oriëntatienota naar penaal beleid? Leuven, K.U.Leuven, Faculteit Rechtsgeleerdheid 1997, I.10.
Reeves, H., ‘The victim support perspective’, in: Wright, M. en Galaway, B. (eds.), Mediation andcriminal justice: victims, offenders and community, London: Sage, 1989: 44-55.
Restorative Justice Consortium, Standards for Restorative Justice, London, National Council for Social
Concern, 1998.

209

RESOURCE MATERIAL SERIES No. 61
Rock, P., ‘Helping Victims of Crime. The Home Office and the Rise of Victim Support in England andWales’, Clarendon Press, Oxford, 1990, 442p.
Skogan, W. G., ‘The Fear of Crime and its Behavioural Implications’, in E. Fattah, ed., From Crime
Policy to Victim Policy, London: Macmillan, 1986.
Skogan, W. G., ‘The Impact of Victimization on Fear’, Crime and Delinquency, 1986, 33: 135-54.
Smaele, S., Homogeneous Victim-Offender Populations: A Review and some Research Implications. The
Journal of Criminal Law and Criminology, 1981, 72 (2), 779-788.
Snacken, S., Surpopulation des prisons et sanctions alternatives. In: MARY, P.: Travail d’intérêt
général et médiation pénale. Socialisation du pénal ou pénalisation du social? Bruxelles, Bruylant 1997,
367- 401.
Snacken, S., Surpopulation des prisons et sanctions alternatives. In: MARY, P.: Travail d’intérêt
général et médiation pénale. Socialisation du pénal ou pénalisation du social? Bruxelles, Bruylant 1997,
382.
Stanko, E. A., ‘Hidden Violence Against Women’, in M. Maguire and J. Pointing, eds., Victims of Crime:
A New Deal ?, Milton Keynes: Open University Press, 1988.
Van Dijk, J.J.M., ‘Eigen schuld, dikke bult ? Over de neiging om het slachtoffer verantwoordelijk testellen voor zijn/haar lot’, Soetenhorst - De Savonin Holman J., (red.) Slachtoffers van misdrijven.
Ontwikkelingen in hulpverlening, recht en beleid, Gouda Quint, Arnhem, 1989, 11-24.
Van Dijk, J.J.M., ‘L’évaluation de l’impact des régimes d’indemnisation et des programmes d’assistance
aux victimes d’infraction’, Annales de Droit de Liège, 1984, 211-216.
Van Dijk, J.J.M., ‘Strafrechtshervormingen ten behoeve van het slachtoffer in internationaal
perspectief ’, Justitiële Verkenningen, 1988, 7-27.
Van Dijk, J.J.M., ‘Victimologie’, Tijdschrift voor Criminologie, 1992, 65-69.
Van Dijk, J.J.M., Mayhew, P. and Killias, M., Experiences of Crime Across the World: Key Findings of the
1989 International Crime Survey, Arnhem, Kluwer, 1990.
Van Kerckvoorde, J., ‘Slachtofferenquêtes’, Handboek Politiediensten, IX, E/3, 1986, 1-17.
Van Kerckvoorde, J., Een maat voor het kwaad? Universitaire Pers Leuven, 1995.
Van Ness, D., ‘Legal Issues of Restorative Justice’, in: Bazemore, G. and Walgrave, L. (eds.), Restorative
Juvenile Justice: Repairing the Harm of Youth Crime, Monsey, Criminal Justice Press, 1999, 263-284.
Verstraeten, R., ‘De burgerlijke partij in het gerechtelijk onderzoek. Het slachtoffer in het strafproces’,
Maklu Uitgevers, Antwerpen/Apeldoorn, 1990, 534.
Viano, E., ‘Victimology: A new focus of research and practice’, Victim’s rights and legal reforms, Oñati
Proceedings 9, Oñati, 1991.
Von Hentig, H., 'Remarks on the interaction of Perpetrator and Victim', Journal of Criminal Law andCriminology, 1941, 31 (3), 303-309.
Von Hentig, H., The Criminal and his Victim, New Haven, Conn.: Yale University Press, 1948.
Walgrave, L., ‘Restorative justice for juveniles: just a technique or a fully-fledged alternative?’, The
Howard Journal of Criminal Justice, 1995, 228-249.

210

121ST INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Weiss, K., Borges, S., ‘Victimology and rape: the case of the legitimate victim’, Issues in Criminology,
1973, 8, 71-115.
Weitekamp, E., The paradigm of restorative justice: potentials, possibilities and pitfalls. Keynote lecture
for the 9th International Symposium on Victimology (unpublished), Amsterdam, 1997.
Wergens, A., Crime Victims in the European Union, Umeå, The Crime Victim Compensation andSupport Authority, 1999.
Wolfgang, M., Patterns in Criminal Homicide, Philadelphia, University of Pennsylvania, 1958.
Wright, M., Justice for victims and offenders. A restorative response to crime (second edition),
Winchester, Waterside Press, 1996.
Young, M., Restorative Community Justice: a call to action, Washington, National Organisation forVictim Assistance, 1996.
Zauberman, R. and Robert, P., Du côté des victimes un autre regard sur la délinquance, 1995,
L'Harmatton Paris.
Zedner, L., ‘Reparation in Criminal Law’, in A. Eser and S. Walther, eds., Wiedergutmachung im
Kriminalrecht: Internationale Perspektiven, 1996, 109-227, Freiburg: Max Planck Institute.
Zedner, L., 'Victims', in The Oxford Handbook of Criminology, 2nd ed., 577-612.
Zehr, H., Changing Lenses: A new focus for criminal justice, Scottdale, Herald Press, 1990.

211