Paper by Annemieke Wolthuis presented at the "2nd International Conference on Conferencing and Circles", August 10-12, 2000, Toronto, Canada.
Defence for Children International (DCI) is an independent NGO founded as an international movement in 1979 (the International Year of the Child). It seeks to ensure ongoing systematic and concerted international action to promote and protect the rights of the child. DCI played an important role in the drafting process of the UN Convention on the Rights of the Child which was adopted in 1989. National sections exist in 60 countries with an International Secretariat in Geneva. DCI has consultative status with the UN, UNICEF and the Council of Europe.
DCI is involved in many issues relating to juvenile justice. One of the first DCI studies carried out by Katarina Tomasevski was on children in prisons, about the human rights of these children. In several countries DCI branches have started legal defence centres for juveniles in conflict with the law. In 1997 DCI started the International Network on Juvenile Justice (INJJ) bringing together NGOs, academic institutions, and individual experts active in the field of juvenile justice all over the world. Experience of partners concerning prevention, training, administration of justice and legal defence is made widely available to countries in need. INJJ provides the following services: a database on available expertise, assistance through the UN Coordination panel on Technical Assistance of which the INJJ is a member, and monitoring services.
In the Netherlands, DCI has undertaken a comparative study on restorative justice in different countries (''Van jeugdsanctierecht naar herstelrecht'', Defence for Children International, section the Netherlands, June 2000). The study covers systems and experiences in mediation, conferencing and other forms of restorative justice with a concluding chapter on restorative aspects and possibilities in the Dutch juvenile justice system.
Restorative justice has not received serious attention in the Netherlands in the last decade, but this is slowly changing. This presentation will also give an overview of the juvenile justice system in the Netherlands, restorative elements already imbedded in the system and some recent developments.
II. The Dutch Juvenile Justice System
Special provisions relating to the treatment of juveniles under criminal law have been inserted into the Dutch code of criminal law (Criminal Code, Wetboek van Strafrecht, Sr) and the code of criminal procedure (Criminal Procedure Code, Wetboek van Strafvordering, Sv). The relevant articles of law are 77a-77g Sr and 486-509e Sr. These provisions replace in part the regulations for adults. The original notion behind special provision for juveniles under criminal law is the idea that any related punishment must be reformatory in nature; the notion of education and reform is pivotal.
In 1995, a new amendment to juvenile criminal law was passed in the Netherlands. On the one hand, the amendment reinforced the legal basis for alternative penalties which, in practice, had operated until then. At the same time, provisions relating to juvenile criminal law were also tightened up: the maximum period of imprisonment for juvenile delinquents for imprisonment was raised from one to two years and restrictions barring the application of general criminal law to juveniles were eased.
1.The Scope of Juvenile Criminal Law
Substantive law governing juvenile crime must be applied in cases where a juvenile is between 12-18 years old at the time when the crime was committed (Article 77a Sr). Children below 12 are deemed to be below the age of criminal responsibility (Article 486 Sv). If any action is taken under civil law, such as the appointment of a legal guardian, then this is permitted only on condition that it will benefit the juvenile.
Under certain conditions juveniles aged between 16 and 18 may also be subject to the general provisions of the criminal code. This depends on the personality of the offender, the circumstances surrounding the case and the gravity of the offence (Article 77b Sr). According to the former provisions of juvenile criminal law all of these conditions had to apply. However, since 1995, simply the gravity of the offence can suffice for the general provisions of the criminal code to be applied. Nonetheless, the resultant legal proceedings are still bound by the provisions of juvenile criminal law.
Juvenile criminal law may be applied to adolescents aged between 18 and 21 - even though Dutch law does not recognise this notion if the personality of the offender or the circumstances surrounding the case make this necessary (Article 77c Sr). This case is met if the juvenile displays signs of mental retardation or has committed typically juvenile offenses. Criminal proceedings which arise under the provisions of juvenile criminal law are in line with general criminal law.
2. Alternative Sanctions
Some alternative sanctions are laid down in the Dutch juvenile justice system. Different forms are possible at different levels. The police can refer to a so-called HALT project and the public prosecutor and the judge have the possibility to use so-called task penalties which consist of learning- and working schemes. Below we outline the different available forms of alternative sanctions:
Special alternative sanction where the police can propose the young offender to participate in a project. Currently the project available is called HALT, short for ''the Alternative''). The youngster will be referred to a HALT bureau where they are offered work or damage compensation for a maximum of 20 hours. This possibility is since 1985 laid down in the criminal code (article 77e). How it works will be explained under section a.
The work should appeal to the young offenders sense of responsibility with regard to the offence which has been committed. The communal nature of the work should change his or her social behaviour for the better. The kind of jobs done under this scheme should promote the needs of society at large and be of educational value.
*Work to compensate for damages incurred
The nature of the connection between the crime and the damage done should be made explicit in the course of this scheme. This sanction is rarely administered in practice.
Learning schemes are there to provide practical and social skills. They are geared towards the provision of group-work as well as one-on-one care. Depending on the nature of the offence which has been committed, the juvenile is required to go on one of three different kinds of scheme which have been developed and made available throughout the Netherlands:
- The Focus on the Victim Learning Project (Slachtoffer in Beeld)
This project is suitable in cases of theft, robbery or assault. The scheme is aimed at ensuring that the young offender understands the consequences of his or her actions on the victim. The victim, however, does not physically take part in the project.
- The Sexual Education Learning Project (Seksuele Vorming)
This project may be useful in cases of sexual abuse where the client is a first-time offender and where violence was not involved. The scheme is aimed at helping the young offender to come to terms with his or her own sexuality and the sexuality of others.
- The Social Skills Learning Project (Sociale Vaardigheden)
Here the young offender is taught to interact better with other people.
In cases consisting of for example vandalism, damage to property or petty theft the police can refer the juvenile to a so-called HALT bureau (Het ALTernatief, the alternative). Since 1995, the possibility of calling on the services of HALT bureaus, which were set up in 1981, is embodied in the criminal code. Further details regarding the way the HALT bureaus operate have been laid down in a legal regulation and in the unitary guidelines of the state prosecution service. For example, a HALT project can only be initiated if the juvenile has already confessed and has not already participated two other such projects. Moreover the juvenile must have been below 18 at the time the offence was committed. A HALT project is designed to deal with the following offenses:-vandalism causing up to NLG 1500 worth of damage;
-arson with danger to the public on objects causing up to NLG 1500 worth of damage;
-simple theft and receiving stolen goods up to a value of NLG 250;
-fraudulent labelling up to a value of NLG 250;
-simple damage to property, including Graffiti, up to a value of NLG 1500;
-despoilment of streets and disorderly conduct up to a value of NLG 1500;
-unlawful entering of a restricted area;
The juvenile is given the choice of having the charges dropped in exchange for his or her participation in a HALT project. A written offer is made to the juvenile with the reminder that he or she is not forced to participate in the scheme. If the juvenile is below 16 the parents must give their consent. If the juvenile agrees to the offer, the police draw up a protocol and send it to a HALT bureau. HALT bureaus have been set up by the local authorities in co-operation with the state prosecution service. The HALT bureau makes the juvenile an offer to participate in a particular project for which his or her consent is again required. The possible measures on offer are work, damage compensation or a combination of the two. A HALT project may not last longer than 20 hours, although in practice it is rare for them to exceed 10 hours. After the measures have been carried out the police conduct a review with the HALT team and subsequently decide whether further charges should be dropped. If the outcome of the HALT measure is positive, the police inform both the juvenile and the state prosecution service in writing of the result. By doing so, further criminal proceedings are dropped unless the injured party has made a successful complaint to the courthouse. If the results of the HALT project are negative, a file for the instigation of preliminary proceedings is opened and passed on to the state prosecution service. Certain officials have been entrusted by the state prosecution service to deal with the police in HALT matters.
b. Public prosecutor
Both the public prosecutor and the juvenile judge have a large flexibility in the system. The system is guided by the principal of opportunity; the public prosecutor decides if prosecution is needed. Furthermore the judge has no minimum sentences. Both prosecutor and judge can decide to suspend prosecution or impose a suspended sentence. (Articles 77m-o Sr)
Since the juvenile criminal law was reformed, the state prosecutor may drop charges (even without the consent of judge) providing that the following conditions are met:
- a guardian has looked after the juvenile for up to six months;
- up to 40 hours of community service; or
- up to 40 hours of work to make amends; or to participate in
- up to 40 hours attendance of a Learning Project.
This means that the public prosecutor can impose these sanctions directly on the young offender.
The last three possibilities to dismiss preliminary procedures are also called alternative sanctions in accordance with the model proposed by the state prosecution service. The Alternative Sanctions Bureau within the Child Protection Board is responsible for the way they are carried out.
If the state prosecutor believes that the sanction was carried out successfully he or she will inform the young offender and so close the criminal prosecution (Article 77q Paragraphs 2 and 3). Should this not be the case, he or she will move the judge of the juvenile court to impose a penalty for young offenders, a fine or another alternative sanction. In practice alternative sanctions are imposed far more frequently than fines or suspended sentences; recent figures show that they replace up to 30% of custodial sentences without probation.
In place of penalties for young offenders or various fines, the judge can also impose so-called alternative sanctions which focus on reforming of the young offender. The law acknowledges the following three sanctions: community service, work to pay for damages incurred and attendance of a learning scheme.
Alternative sanctions imposed by the juvenile judge may only be imposed with the express consent of the juvenile (Article 77n Paragraph 3 Sr). In fact, the law expressly requires that the young offender stipulate which kind of sanction is to be applied (Article 77m Paragraph 1 Sr). Even when it is likely that alternative sanctions are to be imposed, there is a high risk that the juvenile will not request them; consequently, he or she is provided with a defence lawyer. An alternative sanction may last for a maximum of 200 hours. If more than one sanction is to run concurrently, the maximum time is 240 hours. Any such work must be carried out during the period of one year. Learning schemes must be completed within six months. Even though the Child Protection Board (Raad voor de Kinderbescherming) in the form of the Alternative Sanctions Bureau does much of the preparatory work and supports the schemes (Article 77o Sr), ultimate responsibility lies with the state prosecution service. The Child Protection Board may be called upon to attend hearings on the practical and substantive issues of implementing alternative sanctions. A co-ordinating body for alternative sanctions (Coordinatiegroep Alternatieve Sancties) exists in every judicial district and is made up of representatives of the state prosecution service, judges of juvenile courts, lawyers, the Child Protection Board, the youth welfare services and the police. As part of its activities the co-ordinating body publishes guidelines on the implementation of individual sanctions and closely monitors the various Work- and Learning Schemes run by independent organisations as part of the youth welfare services.
After the alternative sanction has been completed the Child Protection Board draws up a report. This is then reviewed by the state prosecution service. In practice, the Child Protection Board, the executive organisations and the state prosecution service place a high value on ensuring that all of the relevant contracts and undertakings have been rigorously maintained. Even slight infringements of existing agreements on the part of the juvenile offender can lead to his or her exclusion from the scheme.
3. Tendencies and community responses
A number of issues have been raised recently in the Netherlands in relation to young offenders, for example, there have been calls from the public and the government for more community service and more severe imprisonment of young offenders. When you believe the media young people in the Netherlands are becoming more and more agressive and that the number of criminal offences is increasing drasticly. Indepth research has shown that this is not the case. When you look at most forms of criminal offences comitted by juveniles they have decreased, with the exception of offences using violence. Another aspect of growing numbers is that of police who is more active in tracking down offenders.
There have also been calls for a lowering of the age of criminal responsibility. After several cases of murder had been committed by children below the age of criminal responsibility some politicians argued that even 10 year-old children should be made subject to the provisions of criminal law. Dutch organisations for the protection of childrens rights, Juvenile Court judges and the majority of deputies in parliament have rejected these demands.
On the other hand, maybe as a reaction to calls for more sever punishment, some are voting for more alternatives such as restorative justice. A growing feeling for a larger role of the victims (and their family) is one of the reasons.
Another issue is that it is said that juvenile judges, juvenile prosecutors and others working or dealing with young offenders is not specialized enough. That there is a need for more specialisation and training.
Furthermore the procedures are lengthy, which results in uncertainty for the young offender. A related issue is the current lack of capacity of youth facilities. Both issues need more attention and money.
III. Restorative justice
Pilots and experiences in the field of restorative justice are being undertaken by victim care
the police, the office of the public prosecutor, at schools and in the youth care system.
Below a short overview will be given of some of these pilots and experiences.
1. Victim care
In the last few years victims of criminal offences have become much more visible in the system and Victim care (''Slachtofferhulp'') is provided. New developments in the area of compensation are laid down in a law of 1995: the "Wet Terwee". This law contains provisions for financial compensation for victims of criminal offences.
Experiments with ''dading'', whereby a proposal was done to suspects and the victims they made in police judge cases to negotiate with each other instead of the case being dealt by the judge, were since 1990 carried out by the ''Landelijke Projectgroep Dading''. It was a civil law alternative for the criminal way of dealing with it. Interests of both parties were taken as a starting point. It was mostly used for adults. However, the scheme received little ministerial support and was discontinued.
In 1997 in The Hague a project ''Herstelbemiddeling''for adults started. It is financed by
the Ministry of Justice for a period of three years and it will be prolonged with at least two years. It is a joint project of the probation office and victim care, where a meeting between victim and offender of a criminal offence is organised after the formal process has been completed. The cases are referred mostly by the probation office, victim care, mental care or the lawyer. A mediator is involved to assist during the mediation, which consists in general of two meetings/conversations.
The meeting can take place in the prison or institution, the Criminal Court, or at the mediation office. The experiences of most victims, offenders and the project coordinators are positive. Currently this form of mediation is only used for adults.
In the Netherlands recently more awareness has been developed of restorative justice, for example by the police and the youth care. ''Echt Recht'', the Dutch translation for Real Justice, is a project coordinated by two Dutch organisations (''Op Kleine Schaal''and ''bureau WESP'', both active in the field of youth care). Based on the principles of Real Justice developed by Terry O''Connel and includes the provision of training to youth care workers. The method can be used seperately from the penal procedure, in education and youth care. Two pilot-projects have been funded by the Ministry of Justice: one in The Hague, involving the high schools, the local police, the platform on youth care and the education assistance service; and the other in the northern provinces Drenthe and Friesland. Both projects are investigating how restorative justice fits into the criminal procedure. Police, justice authorities, HALT, the youth probation office and youth care are involved.
The police have also started some local mediation projects. A few years ago police officer Johan Kunst from Tilburg followed a training programme at the Thames Valley Police in England and was very enthusiastic about the effects of the conversations undertaken in the restorative justice. He tried to see if it was possible to fit a similar mediation system into the Dutch alternative sanctions system. A pilot scheme was set up for young offenders in Tilburg in August 1999. The Council for youth care, the probation office, youth care institutions, the municipal authorities involved in education, Bureau HALT, the office of the public prosecutor and the police are working together to decide which steps are to be taken towards the youngsters involved. One of the possibilities is participation in a restorative justice meeting. Before his/her court case, the offender is asked to take part in a group conversation. This conversation is coordinated by one of the police officers. HALT-cases and cases in which other alternative sanctions are possible, can be dealt with during this meeting. In cases that also end at the office of the public prosecutor, he or she will be informed of the results of the meeting. Offenders are confronted with their victims and co-offenders, but also with parents, and other close people. The starting point of the meeting is to correct the harm done. The outcome will be reported to the public prosecutor. Sofar mostly offenders charged with theft have been offered the mediation, but the idea is to enlarge the scope in the future.
3. Public prosecutor
In Utrecht the office of the public prosecutor is working on a pilot to use mediation as a way to deal with offences at this level. This will be possible for all offences with a with a maximum alternative sanction of 40 hours. It is expected that mediation will be particularly appropriate in the cases that normally would be handled with an alternative sanction of approximately 40 hours work. Other offices are considering similar projects.
4. Dutch Forum on Restorative Justice
Another recent development is the establishment of a Dutch Forum on Restorative Justice (''Nederlands Forum voor Herstelrecht'') in October 2000. People from different backgrounds such as the academic world, NGOs, victim care, youth care and the education system came together to talk about strengthening the movement and spreading awareness about the possibilities of restorative justice methods. It will focus not only on juveniles, but also on adults.
The Forum has the following goals:
-a communication medium: to promote the ideas of restorative justice on all levels, including at the political level;
-the exchange of methodology;
-to work towards implementation of restorative justice in existing structures.
In short the Forum intends to promote experiments, research and creating awareness of restorative justice.
DCI believes that restorative justice for juveniles such as victim/offender mediation should be used and developed on a larger scale in the Netherlands. Experiences abroad indicate that a wide variety of criminal offences can be dealt with by restorative justice schemes.
It is worth noting that some initiatives in the Netherlands which have aimed to promote restorative justice have been well received by the participants and care takers. However, in some regions HALT and some other alternative sanctions should be implemented in a more structural way. To be able to develop restorative justice in a good way it is important to look at possibilities in which contacts between victim and offender can be used to get a positive result. The government must also look more closely at the possibilities of restorative justice, including supporting the development of good quality working methods. Of great importance is that the rights of the child and the basic rules for a fair process are guaranteed.
Especially in case of a condition al ''sepot''of the public prosecutor there are large possibilities to refer to a mediation meeting as special condition. It is important that the mediation takes place on a voluntary basis. With the current legislation there are existing possibilities for police and public prosecutors to refer to other alternative sanctions, this could be broadened with restorative justice projects such as mediation.
In order to promote the way of thinking on restorative justice, one should monitor the results of expert meetings and experiences abroad so as to be able to learn from them. Pilot schemes need to be installed at the police, the office of the public prosecutor, but also at schools to start with restorative justice mediation meetings. Municipalities can play a stimulating and coordinating role in this process. At schools one can work with conflict mediation as a way to handle problems, for example in cases of truancy, carrying weapons, or discriminatory behaviour in the school and conflicts that result from this behaviour. This can improve the security and the atmosphere in schools.
Restorative justice fits well under the UN Convention on the Rights of the Child. It is important to improve the application of restorative justice, also in the Netherlands. It is time to work towards a strong policy programme. At the same time it is important to focus also on prevention, with emphasis on youth participation and assistance for parents in raising children.
Annemieke Wolthuis, December 2000