Tilburg University, Restorative Justice Nederland To a more elaborate regulation of restorative justice in Dutch legislation? Prof. mr. Theo de Roos Tilburg University, Restorative Justice Nederland Bilbao, 5 June 2019

Proposal Aim: introduction of a broadly accepted, workable and effective legal provision To be inserted in the Dutch code of criminal procedure In addition to the already existing provision Article 51h Sv.

Article 51h Sv. (1) The Public Ministry promotes that the police in an as early as possible stage of criminal procedure informs victim and suspect about possibilities of mediation When mediation results in a contract, the judge takes this into account in his decision on the sanction(s)

Article 51h Sv. (2) The Public Ministry promotes/encourages mediation between victim and convicted after establishing that the victim agrees on this.

context mediation in criminal cases Mediation in criminalibus fits within the ambition to anchor restorative inspired ways of working more deeply into society , and to give citizens more responsabilities It takes place in a public and legal context Therefore, quality guarantees of professionals involved are crucial

Process of the initiative First version presented by working group (Maastricht University & Restorative Justice Nederland) widely discussed with stakeholders (2017) Presented to parliament 2017 Adapted while taking into account constructive critical comments: second version presented 2018 Parliament urges Minister for Legal Protection to comment to this vesion; he shows himself rather sympathetic However, exact elaboration in legislation is not clear yet. More clarity hopefully by the end of this year

Some elements of our proposal (1) Victim and suspect both have the right to ask for an investigation whether mediation is possible. Such a request from the side of the victim, or a common request, can only be refused on the basis of very serious grounds The mediation office of the court assesses the viability of mediation and in case of a positive assessment, refers the case to a professional and certificated mediator All communication is confidential, unless otherwise agreed upon by victim and suspect/perpetrator Mediator has duty of secrecy and legal privilege (nowadays not recognized in the law!)

Some elements of our proposal (2) Elaborate regulation how prosecutor and court should take into account the result of the mediation In the case of no result, this should not lead to a tougher sanctioning of the suspect The court can, in the case of a successful mediation, declare that the case is finished!

In all stages of procedure Mediation may take place in all stages of criminal procedure: pretrial investigation (also when the suspect is in pretrial detention); after the start of the public court session, and after an irrevocable sentence during the phase of the execution of the imposed sanctions All professionals involved should play an active role (awareness) Special provisions for juveniles (restorative conference!)

Necessity of more detailed provisions It appears that nowadays even in a small country as the Netherlands, the awareness of involved professionals is not sufficiently spread That is the case although activities of Restorative Justice Nederland and others, many scientific publications and government support (pilots financed by the ministry), have demonstrated convincingly that mediation in criminal cases is successful, and cannot be missed in the field of criminal justice, seen as a effective and humane answer to deviant behavior

Contact Prof. mr. Theo de Roos deroosta@gmail.com voorzitter@restorativejustice.nl (+ 31) 6 54360558 Website www.restorativejustice.nl Twitter @Rest_Justice_NL