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DOI: 10.5553/IJRJ/258908912018001002004

The International Journal of Restorative JusticeAccess_open

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The adventure of the institutionalisation of restorative justice in Belgium

Keywords Restorative justice, institutionalisation, penal change, Belgium
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Anne Lemonne, 'The adventure of the institutionalisation of restorative justice in Belgium', (2018) The International Journal of Restorative Justice 230-251

    At first glance, the adventure of restorative justice (RJ) in Belgium can be considered a real success story. At the turn of the 21st century, programmes oriented towards this justice model officially determined the criminal justice agenda. What were the key ideas that led to the conceptualisation of restorative justice in Belgium? Who were the main actors and agencies that carried them out? What were the main issues that led to the institutionalisation of restorative justice? What are the effects of its implementation on the Belgian criminal justice system in general? This article strives to present the main findings of a study on the basis of an extensive data collection effort and analysis targeting discourses and practices created by actors from the Belgian academic, scientific, political, administrative, social work and judicial spheres from the 1980s to 2015.

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    • 1. Introduction

      Belgian academics and practitioners are well known in the field of restorative justice (RJ). Most people interested in this topic know how much they have inspired the development of restorative justice concepts and practices at an international level in general and at a European level in particular. Their involvement in the publication of many books, articles and journals and in the creation of initiatives such as the International Network for Research on Restorative Justice for Juveniles and the European Forum for Restorative Justice explain this prestige (e.g. Aertsen, Daems & Robert, 2006; Aertsen & Miers, 2012; Aertsen, Parmentier, Vanfraechem, Walgrave & Zinsstag, 2013; Aertsen & Willemsens, 2001; Bazemore & Walgrave, 1999a; Lauwaert, 2003; Lauwaert, 2013; Lauwaert & Aertsen, 2002; Vanfraechem, Aertsen & Willemsens, 2010; Walgrave, 1998, 2002, 2003, 2008). In their own country, these activists also strongly influenced the implementation of restorative justice by participating closely in various debates on criminal policy and in the implementation of pilot experiments dealing with the subjects of juvenile justice and adult justice (e.g. Aertsen, 2004; Aertsen & Peters, 2003, 2006; Geudens, Schelkens & Walgrave, 1998; Walgrave, 2000a, 2006; Walgrave & Vanfraechem, 2003).
      At first glance, the adventure of restorative justice in Belgium can be considered a real success story. Indeed, at the turn of the 21st century, programmes oriented towards this justice model officially determined the criminal justice agenda, with political statements, experts’ reports and legislation stating their importance as part of larger penal reforms taking place in the country. Belgium can thus be considered a good case study for reflecting on the institutionalisation of restorative justice.
      What were the key ideas that led to the conceptualisation of restorative justice in Belgium? Who were the main actors and agencies that carried them out? What were the main issues that led to the institutionalisation of restorative justice? What are the effects of its implementation on the Belgian criminal justice system in general and on its users in particular? These questions are at the heart of this article, which strives to present the main findings of a doctoral research aimed at tracing the emergence and development of restorative justice in Belgium, at better grasping its place in the criminal justice system and at evaluating the effects of its main programmes (Lemonne, 2016).
      After providing a brief overview of the theoretical and methodological framework of the research, I will present the main lessons of the study. In conclusion, I will reflect on what can be learned from these findings for any further institutionalisation of restorative justice.

    • 2. Theoretical and methodological background of the study: a social analysis of restorative justice

      The question at the core of the study was quite simple. According to some of its proponents, restorative justice can respond more constructively and inclusively to issues present in the field of penal regulation since the 1970s: a lack of attention to the victims’ needs, the downsides of the treatment/rehabilitative model, criticism of the excessively central role of the prison and the idea of punishment within the system (with all its side effects in terms of stigmatisation and exclusion), the great costs of the criminal justice system, complaints about its overly bureaucratic rationale and more (McLaughlin, Fergusson, Hughes & Westmarland, 2003). In the international literature, restorative justice is thus often presented as an alternative paradigm to the criminal justice system or, at least, as a promising dominant model for it (Fattah, 1998; Galaway & Hudson, 1996; Johnstone, 2002; Sherman & Strang, 2007; Strang, Sherman, Mayo-Wilson, Woods & Ariel, 2013; Walgrave, 1995; Zehr, 1990).
      Yet in the past, some findings on penal changes have shown that despite promising previous ambitions, it is important not to overestimate a priori the rupture of new discourses and practices with previous discourses and practices in the criminal field (Garland, 1985; 2001; Mary, 1998). More recently, when restorative justice was growing and was supported by its enthusiastic replacement discourse (Dignan, 2002; Gavrielides, 2008), authors such as Albrecht (2001), Crawford (2006), Pratt (2006) and O’Malley (1999) stressed the need to question contemporary developments in restorative justice as an excessively determinative rationale in penal discourses and practices and to better understand the processes and issues at stake in them.
      From this starting point, it is appropriate to ask the following questions: in Belgium, do restorative justice discourses and practices constitute a real breakthrough in the traditional criminal justice system at a conceptual, normative and practical level? If not, to which larger penal rationale do they belong? Which actors have supported the idea of restorative justice and what are the issues slowing down or, on the contrary, fostering the initial ambitions of its main promoters in this country?
      Garland and Young (1983), Garland (1985, 1990, 2001) and Bourdieu (2001) had a powerful influence on the conceptual and analytical framework of this research. On the one hand, as recommended by Garland and Young (1983) and Garland (1985, 1990, 2001), restorative justice was not viewed through a single discourse or practice considered particularly representative of the subject – which would suggest that restorative justice is a coherent and singular unit – but through a variety of discourses and practices produced by various actors (academics, public servants, politicians and practitioners). Restorative justice discourses and practices were also observed in their articulation with other discourses and practices of the social and penal realms. On the other hand, following Bourdieu (2001), restorative justice discourses and practices were considered as produced by various ‘agents’, coming from specific social ‘fields’ (judicial, political, scientific and social work in justice), owning specific types of ‘capital’ (economic, symbolic and social) and struggling to define the legitimate dominant discourses and practices of restorative justice.
      Therefore, it was the outcome of these struggles, prompted by the ‘agents’ position in the social structure’ and their relational dynamics, that enabled to grasp the logic, the place and the effects of restorative justice discourses and practices among larger discourses and practices in penal and social regulation in Belgium. Critical discourse analysis was used as the major method of analysis (i.e. discourses were seen as produced in a social context which means that they were observed as constituted by social practices and situations and as constituting them) (Petitclerc, 2009).
      The study involved a major data collection effort targeting discourses created by ‘agents’ from the academic, scientific, political, administrative, social work working in justice and judicial ‘fields’ from 1980 to 2015, including scientific publications, political notes, laws, circulars and other normative texts. The implementation of practices was also evaluated, though mainly through ‘discourses’ from the scientific and administrative fields (major supervised scientific research and administrative reports). In this framework, discourses including the terms ‘restorative justice’, ‘reparative justice’ or related to programmes usually defined as part of this justice model at an international and/or national level (‘mediation’, ‘community service order’, ‘group conferencing’, ‘victim services’, ‘sensitization of the offenders to the victim’, etc.) were selected. In addition, discourses surrounding these programmes were analysed in order to grasp the larger context of their implementation. The research focused primarily on the criminal justice field and extended to the social field (schools, work…) – even if secondarily – in order to discover potential relationships between rationalities in these fields.
      From the analysis of the collected data, I can highlight four lessons that may be of some interest for the possible further institutionalisation of restorative justice. The first lesson is related to observations of the conceptual realm of restorative justice. The second involves an analysis of the normative and practical domains. The third lesson deals with the sociopolitical context in which these various changes have appeared and the fourth has to do with the position of the different actors coming from various fields and promoting restorative justice in Belgium, as well as the power relationships existing among them.

    • 3. Lessons from studying the development of restorative justice in Belgium

      3.1 Lesson 1: at a conceptual level, restorative justice proponents in Belgium do not promote a radical break with the criminal justice system

      At a theoretical level, it quickly becomes clear that there are many ways to define restorative justice (Mc Cold, 1998; Johnstone & Van Ness, 2007). The positions adopted by the various actors involved in defining restorative justice have been already discussed in detail elsewhere (Dignan, 2002; Gavrielides, 2008; Lemonne, 2016). However, from this variety of positions, two main models can be identified that help us to understand several issues at stake in the development of restorative justice in Belgium: the purist and the maximalist models (Bazemore & Walgrave, 1999b; Mc Cold, 2000; Walgrave, 2000b, 2000c). Indeed, these two models provide an opportunity to address the changes that the proponents of restorative justice have proposed to the main philosophies of the criminal justice system and to more easily position the development of restorative justice and of its main promoters in Belgium (Lemonne, 2002).
      The purist model tends to exclusively favour restorative processes (such as mediation, family group conferencing and sentencing circles). According to this model, restorative justice programmes are developed outside the ideological and practical sphere of the criminal justice system. They also tend to compete with the criminal justice system by diverting as many cases as possible from it. Restorative justice is then considered a ‘distinct realm’ (and not a penal one) aimed at questioning traditional ways of reacting to crimes and conflicts from beyond the penal field (McCold, 2000). The maximalist model focuses on reparative outcomes. restorative justice processes involving perpetrators, victims and the community are favoured to reach these outcomes. If such a process cannot take place, however, the judicial authorities may propose other measures such as issuing a community service order or taking unilateral measures for victims (compensation, support for victims or the offenders’ sensitisation to the victims), with coercion used if necessary. The model also allows imagining the use of ‘incapacitating’ solutions such as ultimum remedium, ideally complemented by a restorative justice process or a reparative objective. This model then reintroduces the state as an important actor in the process and integrates the values and criteria of the justice system in general and of the criminal justice system in particular, like judicial guarantees, the coercive dimension, unilateral measures with a reparative objective (sometimes also used in other philosophies) and complementarity with other objectives such as rehabilitation and incapacitation (Bazemore & Walgrave, 1999b; Walgrave, 2000b, 2000c). Strategically, this model aims to influence the values of the criminal justice system (and not especially to compete with it) by adding a reparative objective to it.
      In Belgium, dominant academics and practitioners in the conceptual field of restorative justice, mainly promoted a maximalist vision of it. Academics such as Walgrave, Peters and Aertsen played a major role in conceptualising restorative justice at the national and international level, but so did practitioners previously active in the social work juvenile justice field, gradually implementing victim-offender mediation programmes from their experience with the limits of community service orders, in particular for the victims, within a movement aimed at reducing the use of youth confinement.
      Back in 1981, Walgrave, a professor leading the Research group on Juvenile Criminology at KU Leuven, showed interest in the concept of reparation (Walgrave, 1981). As he states in his book Restorative justice, self-interest and responsible citizenship (Walgrave, 2008: 4): ‘Intuitively, I took a reparative position without knowing of developments in other countries. It was only in 1991, at an international workshop on Conflict, Crime and Reconciliation (Walgrave, 1992) that I heard for the first time the phrase “restorative justice”. My earlier intuition fitted into the ideas being shared, and the contours became visible of a broader and deeper concept of doing justice’.
      It is worth mentioning that his vision comes from his criticism of the rehabilitative philosophy driving the juvenile justice law in Belgium since the beginning of the twentieth century. His critiques have mainly focused on the lack of legal guarantees in the juvenile justice law as well as its distorted effects and failure to deal with juvenile delinquency. In particular, he has heavily criticised the juvenile justice system’s contribution to the stigmatisation of young delinquents, arguing that such stigmatisation only increases their social vulnerability. However, critical thoughts about the rehabilitative/treatment model characterising the juvenile justice law developed drastically in Belgium, especially starting in the 1980s, have also made him wary of a return to penal rationality in the juvenile justice field.1x For socio-ethical but also for instrumental reasons, in terms of general prevention and rehabilitation, Walgrave (1994: 61) pointed out that ‘retributivist justifications of penal justice are based upon a classicist view of mankind and society and canalize revenge within the procedures of a constitutional state. This cannot be sufficient to govern society. Instrumentalist arguments should at least be added to this. However, empirical research has clearly shown that the instrumentalist ambitions of penal law are not met.’ For Walgrave, reactions to delinquency should be constructive by proposing to do something good instead of something bad. They should thus help young people to adequately measure the boundaries between what is allowed and what is forbidden by asking them to take responsibility in a positive way. Here, Walgrave suggested a ‘third way’: young people would no longer be punished or treated, but invited to offer reparations. According to him, such an orientation would enable us to escape the choice between a punitive model of justice and a treatment model (Walgrave, 1981, 1992, 1994). Since the 1990s, Walgrave published many articles and books on restorative justice that continuously promote a maximalist vision of restorative justice. His restorative justice model has always been thought of as ‘inverted retributivism’ (Walgrave, 2008). Indeed, his vision articulates the limits of social tolerance (restorative justice is used because a crime has been committed and is disapproved of and offers criteria for the censure or punishment to take place). However, it should not add pain: ‘Restorative justice does not add more hurt, but tries to take hurt away by inverting punitive retributivism into constructive restorative retributivism’ (Walgrave, 2008: 62). Under his restorative justice model, Walgrave also states that some important issues could be addressed in the criminal justice system in general and in the juvenile justice system in particular, including respect for legal guarantees, efficiency and an improved response to the expectations of the offenders and the victims. According to him, prioritising restoration over punishment is above all the expression of a different socio-ethical position, an ethic of social life based on the concept of ‘common self-interest’. The vision of social life prompted by such a concept tends to foster the ethical attitudes of respect, solidarity and active responsibility, which are present more in restorative justice than in punitive justice. Like other promoters of restorative justice, Walgrave has suggested a restorative justice model in the form of a pyramid. The base of this pyramid suggests that the use of restorative justice processes (mediation, conferencing) should be maximised. Its apex represents the minimal reaction required by every society to deal with irrational and incompetent delinquents (incapacitation). In between is a space fostering restorative justice responses to crime, in which the degree of voluntariness decreases and the degree of coercion by the judicial system increases, with the use of legal guarantees, even if the latter must be envisioned differently than in the criminal justice system (Walgrave, 2002, 2008). Walgrave’s contribution to the institutionalisation of restorative justice in Belgium has been effective since he and other experts were appointed by ministers of justice to come up with a reform of the juvenile protection law. His report operationalised his maximalist vision of restorative justice (Geudens et al., 1998). It also promoted evaluative research projects on community service and family group conferencing (Geudens, 1998; Geudens & Walgrave, 1996; Walgrave & Vanfraechem, 2003). The latter was conceived as an action research project, developing and evaluating the implementation of Hergo 2x Hergo is the acronym of ‘Herstelgericht groepsoverleg’, the Dutch term used to name restorative group conferencing programmes in Flanders. in Belgium.
      Another important source of conceptualisation of restorative justice in Belgium comes from the Research group on Penology and Victimology, also based at KU Leuven, headed successively by Peters and Aertsen. The members of this group have led research on prison and community sanctions since the late 1970s, but since the mid-1980s they have also showed a growing interest in victimology and restorative justice. They have therefore developed their vision of restorative justice from a penological and victimological point of view and focused their reflections on the adult criminal justice system (Aertsen, 2000, 2004, 2005; Aertsen & Peters, 1998a, 1998b, 2003; Peters & Aertsen, 1995, 1998; Peters, Aertsen, Robert & Lauwaert, 2003). The basic assumptions of their work are as follows: on the one hand, criticism of the rehabilitative/treatment model has led to a significant risk of developing more repressive policies; on the other hand, the use of alternative measures as a means of diversion lacks impact on the rates of imprisonment. Moreover, these measures sometimes have a real punitive logic that does not satisfy the interests of the victims or the offenders (Peters & Aertsen, 1995). One way out of this situation was for them ‘to place the sentence in a renewed and enlarged context, offering the possibility for redefining the sanctions as well as their content’ (Peters & Aertsen, 1995: 313). According to them, what is problematic above all is the relationship between the criminal justice system and the offender, as well as the victim. Therefore, they launched a research programme centred on making offenders aware of their responsibilities, providing reparations for victims and placing the relationship between offenders and victims first and foremost for the purpose of social pacification. Starting from this theoretical position, they promoted the implementation of an action research on ‘mediation for redress’ in which they supported the idea that if restorative justice programmes should preferably be developed in the early stages of the criminal justice process, they should also be developed during all stages (after prosecution, before sentencing and after sentencing in the context of the execution of the sentence) and also for more serious crimes. Indeed, they feared that as long as mediation is limited to petty offences, more serious ones will be handled by the traditional justice system in an increasingly punitive way. Yet according to the researchers, these serious cases are the ones in which victims are most in need of reparations. Along the same lines, they also promoted another action research on ‘restorative detention’ in collaboration with the University of Liège in order to imagine how to meet victims’ needs and to observe the development of restorative justice programmes during detention. The aim of the project was to reorient prison philosophy towards a ‘culture of reparation’ (Haudiomont et al., 2004; Robert & Peters, 2003). In addition, other research programmes directly related to restorative justice were also carried out in research departments at KU Leuven with a view to establishing the concept in school environments (De Clerck & Depuydt, 1999; Vettenburg & Goethals, 2008).
      It is worth emphasising that all these teams initiated pilot projects in collaboration with practitioners who also contributed considerably to developing the conceptualisation of restorative justice. In addition, they continuously built their vision of restorative justice in a dialogue with other academics also interested in the development of mediation programmes but pleading, for instance, for a reinforcement of the juvenile’s rights in the juvenile justice system or adopting a more critical sociological analysis of the development of restorative justice (e.g. Dumortier & Eliaerts, 2002; De Fraene, Christiaens & Nagels, 2005).
      Finally, political and judicial actors also promoted the development of programmes that could be connected to a philosophy of restorative justice. They did so firstly, and perhaps paradoxically, via a diversionist philosophy more compatible with the purist model of restorative justice and secondly, by reorienting the entire criminal justice system towards an objective of reparation more compatible with the maximalist vision of restorative justice (see below). However, as we will discover in the next section, the arrangements they suggested were often less strictly driven by a spirit of restorative justice than those espoused by its promoters.
      From our analysis of the conceptual realm outlined above, the first lesson to be learned is that, even though its most purist promoters conceive of restorative justice as a break with traditional criminal justice in all respects, the restorative justice model favoured in Belgium is not such a radical breakthrough with regard to the criminal justice system, as it is not envisioned as a totally separate realm. Their approach has undoubtedly boosted the implementation of the programmes, since their vision of restorative justice is more compatible with the rationality of the criminal justice system. Indeed, the maximalist perspective is primarily based on many principles and programmes already found in the traditional justice system. In the model, innovative programmes like mediation and conferencing do exist, but they join others that are rearranged by adapting their objective to reparations (orders to perform community service) and by allowing a certain complementarity (rehabilitation and incapacitation), even if the order of priority is not one that usually comes to mind in the traditional criminal justice system.

      3.2 Lesson 2: at a normative and practical level, restorative justice is mainly understood as a supplement to other rationales still present in the criminal justice system and does not overlie the rationality of this system

      Since the 1990s, many discussions and proposals took place in Belgium to promote restorative justice processes one way or another and to introduce reparation-oriented programmes into the criminal justice system. Moreover, successive political discourses, laws and circular letters from judicial authorities and ministers have suggested a significant reorientation of Belgian criminal policy and of the criminal justice system towards programmes associated with a maximalist vision of restorative justice in the fields of juvenile and adult criminal justice (e.g. victim-offender mediation, community service, victim’s funds, victim awareness programmes for offenders, etc.).
      In brief, in 1994, a law on ‘penal mediation’ was passed, while various circular letters from public prosecutors introduced what was called ‘local mediation’ or ‘mediation at the police stage’.3x Law of 10 February 1994 organisant une procédure de médiation pénale, M.B., 27 April 1994; Law of 10 February 1994 modifiant la loi du 29 juin 1964 concernant la suspension, le sursis et la probation, pour ce qui concerne le travail d’intérêt général, M.B., 27 April 1994; Circular letters from public prosecutors establishing a procedure of local mediation (latter enacted by the law relative aux sanctions administratives dans les communes du 13 mai 1999, then modified successively by various laws in 2004, 2005 and more recently by the law of 24 June 2013 relative aux sanctions administratives, M.B., 31 December 2013). Both were designed as diversion programmes that enabled the public prosecutor to dismiss cases instead of prosecuting them. During the same period, community service orders were also promoted as an alternative to suspended sentences, and various programmes aimed at strengthening the position of victims were introduced at the periphery of the criminal justice system.4x For example, Law of 1 August 1985 establishing financial aid by the State to the victims of intentional acts of violence and to occasional rescuers (Loi portant sur des mesures fiscales et autres, M.B., 6 August 1985); the law sur la function de police (which defines the notion of assistance to victims in article 46), M.B., 22 December 1992; the directive from the Minister of Justice of 15 September 1997 stating the implementation of a service for reception of victims at the level of the public prosecutors services.
      In the mid-1990s, however, some political discourses suggested a firmer re-orientation of criminal policy and the criminal justice system towards restorative justice. Indeed, a policy paper written by Minister of Justice De Clerck in 1996 stated the importance of reorienting criminal policy towards community service orders, mediation, reparations for victims and of taking a constructive approach to offenders.5x See Minister of Justice De Clerck, Politique pénale et exécution des peines. Note d’orientation, 1996. In 1999, another policy paper written by Minister of Justice Verwilghen announced the appointment of restorative justice consultants in each prison in order to reorient detention towards reparation and to introduce a reparative culture in prison, following the pilot experiment launched by Flemish- and French-speaking universities (see above).6x Note de politique générale of Minister of Justice Verwilghen, 1999; Minister of Justice Verwilghen, Circulaire ministérielle n°1719, 4 October 2000. Furthermore, the – unilateral – position of victims in the criminal justice system was also strengthened by gradually granting them more rights and abilities to influence the criminal justice process.7x See, for instance, the Law of 12 March 1998 that aims to ameliorate the penal procedure at the level of the information and instruction and gives a certain number of rights to victims, M.B., 2 April 1998; Law relative à la libération conditionnelle relative à la libération conditionnelle, M.B., 2 April 1998 and Law instituant les commissions de libération conditionnelle, M.B., 2 April 1998.
      Following these efforts, the objective of reparation and restorative justice processes was even further institutionalised in the 2000s. A law providing for mediation at all stages of the criminal justice system was enacted under the influence of the pilot experiments developed by academics and practitioners promoting an ideal of restorative justice.8x Law of 22 June 2005, implementing Des dispositions relatives à la médiation dans le Titre préliminaire du Code de procédure pénale et dans le Code d’instruction criminelle, M.B., 27 July 2005. The objective of reparations for the victim by the offender was also much discussed in plans for larger reforms initiated by successive governments, such as those calling for the development of detainees’ rights during detention (adopted by law in 2005),9x See Report of the Commission Dupont établissant les principes relatifs à l’administration pénitentiaire et à l’exécution des sanctions privatives de liberté and Law de principes concernant l’administration des établissements pénitentiaires ainsi que le statut juridique des détenus, M.B., 1 February 2005. the creation of special courts for implementing sentences in general and conditional release in particular (enacted in 2006),10x See Report of the Commission Holsters, ‘Tribunaux d’application des peines, statut juridique externe des détenus et fixation de la peine’. Part 1 and Law of 17 mai 2006 relative au statut externe des personnes condamnées à une peine privative de liberté et aux droits reconnus à la victime dans le cadre des modalités d’exécution de la peine, M.B., 15 June 2006. projects to reform the sentencing system (never adopted)11x Report of the Commission Holsters, ‘Tribunaux d’application des peines, statut juridique externe des détenus et fixation de la peine’, Part 2. and reforms of the juvenile justice law (passed into law in 2006).12x Laws of 15 May 2006 and 13 June 2006 Modifiant la législation relative à la protection de la jeunesse et à la prise en charge des mineurs ayant commis un fait qualifié infraction, M.B., 2 June and 19 July 2006. Finally, in support of the idea of diversifying punishment, community service was implemented as an autonomous penalty in 2002.13x Law of 17 April 2002 relative à la peine de travail, M.B., 7 May 2002.
      However, what is striking when we closely examine these reform processes and the various discourses accompanying them is the systematic partial development of the restorative justice model compared with the maximalist one envisioned by the main restorative justice promoters in Belgium. First of all, restorative justice programmes have mainly been implemented either before prosecution, as diversionary measures (local/penal mediation, community service orders), or at the end of the criminal justice process, as a supplement to traditional criminal justice procedures (mediation at all stages of the criminal justice system and unilateral programmes to support or provide reparations for victims), or as a means to ‘require’ reparation from the offender to the victim (during implementation of the sentence or at the conditional release stage).14x The objective of reparation becomes, before all, a modality of reinsertion for the offender. The latter must assume his responsibilities towards the victims, accept his or her moral and material debt and his or her guilt. The position of the victims also becomes more important. They can require compensation for their moral and material prejudice, if needed, in asking questions to the offender, directly and indirectly. They can also suggest conditions for the conditional release of the offender within the limits of their ‘direct and legitimate interest’. The heart of the system, the sentencing phase, thus remains untouched (Aertsen & Beyens, 2005). There are two exceptions to this, however: in the juvenile justice system, restorative justice is a priority even though the juvenile justice law combines various objectives, and in the adult penal justice system, the community service order is an autonomous penalty that can be decided by the judge. Secondly, the rationales behind the design of these programmes are still significantly hybridised, as reparative objectives or processes are systematically combined with other objectives or processes. For example, the so-called ‘penal mediation’ procedure has at least, rehabilitative and reparative aims: it includes a real mediation process allowing a possible encounter for offenders and victims, but also community service, training programmes and therapy for offenders. Moreover, the offender can be considered under pressure since his or her case can be closed if he or she accepts to participate in a mediation. Many restorative justice processes or measures are also developed as part of hybrid laws, including penal/censure, rehabilitative and reparative objectives. This is the case in the juvenile justice law (Goedseels, 2016) or in the law regulating the implementation of the prison sentence and of the conditional release (Mary, 2006, 2013), for instance. At the qualitative level, what is striking in the design of these practices is thus the hybridisation of the logics intersecting all the various arrangements. In this spirit, even mediation is above all complementary to regular punishment at all stages of the criminal justice system, even though the judge can take the agreement signed by the parties into account if they wish. Thirdly, the study of previously implemented practices reveals an even more nuanced picture. Early evaluative research, often conducted by the promoters of restorative justice themselves in pilot projects, stressed the favourable qualitative impact that restorative processes can have for offenders, victims and communities alike, as well as the promising development of those programmes. However, more tempered evaluations have also come forth. The effects of the hybridisation of the logics driving criminal justice policy today have been indicated in particular because they were thought to lead to rising pressure on offenders (in addition to being punished, they also had to rehabilitate and provide reparations to the victim) and to an increasing risk that they might fail to fulfil the conditions imposed by the judicial authorities (with the judicial authorities imposing a higher level of punishment against these offenders as a result) (Hanozin, Piers, Van Dongen, Vanempten & Vanneste, 1997; Daems, Robert, Neys & Peters, 2006). It has also been highlighted that the hybridisation of logics could lead to dissatisfaction among the victims. Indeed, without a good communication process between victims and offenders, victims could be frustrated if the judicial authorities do not entirely take their desire to achieve other valued objectives into account, such as punishment or rehabilitation, for instance (Buonatesta, 2004, 2005; Lemonne, Vanfraechem & Vanneste, 2010).
      At a more quantitative level, in the long run, research has also shown very limited use of restorative justice processes. In the field of adult justice, public prosecutors have mediated approximately 6,000 cases per year since 1999. However, the penal mediation procedure accounted only for 0.41 per cent of the decisions taken by public prosecutors in 2014. In addition, it has been shown that penal mediation is mainly oriented towards petty cases involving a risk of net widening (Burssens, 2013; Jonckheere, Burssens & Mincke, 2014).15x From which more than 50% of the cases are dealt with in the framework of a mediation process taking place between offenders and victims. Mediation for redress was referred to as a complement to the criminal justice system in approximately 4,000 cases in 2014, but the impact of mediation agreements on judicial decisions notably remains unknown.16x The design of the pilot project ‘mediation for redress’ was built with the idea that the results of the mediation process could influence the further judicial decision, if victims and offenders were willing to. The idea was that ‘mediation not only results in a horizontal dialogue between the offender and the victim, but that there also follows the development of a vertical communication among both the parties on the one hand, and the judge magistrate on the other’ (Peters & Aertsen, 1995; Aertsen & Peters, 1998b: 115). This idea was adopted also by the law of 2005 (Lemonne, 2007). Indeed, today no research evidences yet the fact that judicial authorities are taking the agreement of the parties into account and even less, if they decrease in consequence the level of punishment imposed on the offender. In the adult criminal justice field, unilateral measures currently seem to enjoy more success than restorative justice processes despite the opposite priority defended by its main restorative justice promoters (see earlier). This is especially the case with community service orders, which are considered an autonomous penalty in Belgium, revealing a combination of punitive and reparative aims. Around 9,000 cases resulted in community service orders in 2013, but more were probably issued to replace suspended prison sentences (Cartuyvels, Guillain & Slingeneyer, 2016). In addition, if a community service order is implemented today as an autonomous penalty, its reparative aim is mainly seen as symbolic and painfulness is not exempted either from the legislator’s intent. Finally, it is important to emphasise that there has been no reduction in the use of imprisonment, which increased by 56 per cent between 2000 and 2014, whereas the general population grew only by 9 per cent. The prison population reached 12,000 in 2014 (Cartuyvels et al., 2016). When the field of juvenile justice is examined, where mediation and family group conferencing are seen as priorities in legislation, only 3 per cent of judges’ decisions referred to these programmes in 2011 (Mahieu & Ravier, 2013). This number is much higher for public prosecutors (a large majority of the mediations are referred by the public prosecutor), but is subject to the same potentially net-widening distorted effects as in the adult field.17x For instance, cases that are sent to mediation are ones that were not dealt by the criminal justice system before the introduction of these programmes. In addition, if mediation does not succeed, the public prosecutor can take another unilateral decision of sanction. In addition, mediation and community service are often combined measures likely to lead to a deepening of the penal control and to additional chances of failure for the delinquent to fulfil multiple expectations (Dupont-Bouchat, Christiaens & Vanneste, 2015).18x Community service is a separate measure and is not conceived as an issue of a mediation process. Belgium is a Federal State in which juvenile justice is regulated and organised by the ‘communities’ (political entities). According to Dupont-Bouchat, Christiaens & Vanneste (2015), in the Flemish Community, mediation rapidly gained success in comparison with community service. On the contrary, in the French Community, community service gained more success than mediation. In Flanders, in 1999, approximately 600 youth offenders were sent to mediation and, in 2001, 1,300 were sent. In 2001, however, 85% of the mediations were decided by the public prosecutor and only 15% by the judge. In the French Community, less than 100 mediations were referred by the public prosecutor in 1998 and around 400 in 2011. As in Flanders, they were recommended by the juvenile judge in a minority of cases: 130 in 2002 and 160 in 2011. Restorative group conferencing is not extensively used in practice. A quantitative research conducted by Dachy (2014) establishes that between 2007 and 2010, only 145 restorative group conferences had been proposed by the juvenile judge to young delinquents in the French Community and 94 in 2011 in Flanders. For more details on these numbers, see Dupont-Bouchat, Christiaens & Vanneste (2015). Finally, some restorative justice arrangements simply disappeared: it is the case of the restorative justice consultants in the prison settings, supposed to develop a culture of reparation in prison settings, who saw their function ‘swallowed’ in general managerial functions (Robert & Peters, 2010; Stamatakis & Vandeviver, 2013).
      Therefore, the second lesson that can be learned from analysing restorative justice discourses and practices in Belgium is that, at a normative discursive level and at a practical level, restorative justice is far from excessively determining the rationale of the criminal justice system, despite a robust discourse since the 1990s that has promoted concepts and programmes conceptually linked to this model and determined an order of priorities inverse to what the current situation shows. Moreover, its combination with other rationales leads to a risk of distorted effects for both offenders and victims, and to the extension and deepening of penal control.

      3.3 Lesson 3: restorative justice is the result of larger penal trends in criminal policies that have favoured and distorted an ideal restorative justice model

      The sociopolitical context in Belgium has had a strong influence on the emergence of discourses and practices related to restorative justice. Since the 1990s, restorative justice programmes have essentially been implemented firstly in a context of stepping up the fight against petty delinquency, insecurity and impunity (community service orders, penal mediation and local mediation) and secondly, in the 2000s, as increasing attention was paid to protecting and meeting the needs of crime victims and to risk management policy towards (ex)prisoners (Mary, 1998, 2006, 2013).
      In the 1990s, the implementation of mediation or community service programmes prior to prosecution was not merely supported by a willingness to offer a real alternative to the criminal justice system. It also aimed to enhance public prosecutors’ ability to react when faced with an overloaded system and without a constant and clear willingness to reduce its punitive rationale (Mincke, 2010). Finally, restorative justice programmes were also implemented in a context where conjectural events like the well-known Dutroux affair 19x The Dutroux case is a criminal case that took place in Belgium in 1996. The main protagonist of the case, Marc Dutroux, is, among others, the author of rapes and murders on children and teenage girls, as well as activities related to pedophilia, and was sentenced for these offences. The dysfunctions of the Justice and the police which were brought to light by this affair caused major disturbances in Belgium and led to important reforms there. circumvented the initial intentions of some political programmes, placing the victims of serious crimes at the forefront of criminal policy, but also toughening penal controls on offenders (Mary, 2006, 2013). During the same period, political programmes favoured restorative justice initiatives but also the extension of prison capacities and the creation of a closed centre for juvenile offenders (Mary, 2006; Dupont-Bouchat et al., 2015). In the 2000s, the implementation of restorative justice programmes with a firm reparative objective after prosecution and during sentencing was essentially valued in light of the idea of reparations for victims and of making offenders aware of their responsibilities, but it all took place as part of a risk management policy and amidst a hardening of repressive trends rather than according to the socio-ethical vision of respect, mutual solidarity and the constructive acknowledgement of responsibility advocated by some of its restorative justice promoters. For instance, under the criteria of the decisional process on conditional release delineated by the new law of 2006, the attention that offenders must pay to victims has been increased, as has the victims’ ability to be informed of the judge’s decision. Yet this law gives no priority to restorative justice processes, even if they were hardly requested for by restorative justice proponents, who consider them more constructive for both victims and offenders (Aertsen & Beyens, 2005; Buonatesta, 2005). Indeed, if the process to assume responsibility is better sustained as part of restorative justice processes in a restorative philosophy, as argued by its most fervent supporters, politicians promoting a more punitive model also value the idea of offenders acknowledging their responsibility, but think that this can be implemented through more unilateral coercive and punitive measures. In the same spirit, if restorativists think that victims’ expectations to receive reparations can be met with more constructive and depolarising policies, supporters of more punitive or retributive policies believe that offenders may be forced to offer compensation to victims, which therefore often polarises offender–victim relationships (Lemonne et al., 2010). These tensions came up quite often in the analysis of the discourses of many politicians supporting the reform processes, leading to the reorientation of criminal policies in Belgium towards more reparative objectives and processes and had a double effect: the idea of responsibility and reparations for victims resonated well with their own understanding and the values they defended, which sometimes led to a better acceptance of restorative processes. But it occasionally also led to the distortion of the fundamental meaning of the idea of restorative justice as endorsed by its promoters at the conceptual level (Lemonne, 2016).

      3.4 Lesson 4: restorative justice is not an autonomous field, but is intersected by the rationales of various actors from other fields

      Restorative justice discourses and practices are upheld by ‘social agents’ (Bourdieu, 2001) who have an important understanding of positions within the social ‘field’ (Bourdieu, 2001). One of the aims of the research was to try to grasp the current autonomy of the field of restorative justice in Belgium where these agents operate. Another challenge was to determine whether restorative justice discourses and practices are driven more by the logic of other fields, which they partially absorb, giving rise to a domain that is not purely oriented towards the conceptual logics and issues of restorative justice. This area could then be described as a subfield (Van Campenhoudt, 2009; Van Campenhoudt & Marquis 2014).
      This study has demonstrated that restorative justice is not yet an autonomous field. This means that it is continuously intersected by the rationales of other spheres (judicial, political, social work in justice and victims). The ‘agents’ active in this semi-autonomous field who reflect on restorative justice and try to define its limits and the important issues at stake in implementing the concept are academics and practitioners who mainly develop programmes considered to be at the heart of a philosophy of restorative justice. At this level, these promoters primarily support the maximalist perspective of restorative justice. However, they have also had a powerful influence on developing the practical domain by implementing action research, evaluating potentialities and making practices available for institutionalisation (Kloeck, 2000).
      Actors with a dominant position in the normative domain come from the judicial and political sectors. As such, actors working on the conceptualisation of restorative justice do not have a dominant position in the field, even though they may sometimes influence some regulations or legislation by speaking as experts. At this level, it is mainly their involvement in political discussions, but also their dominant position in academia (where they train generations of students who sometimes later occupy important positions in the justice system) that has made the institutionalisation of some restorative justice programmes possible.
      The juvenile justice system is certainly where the idea to adopt a restorative model has been the most prevalent, particularly through the influence of Walgrave, who was appointed by Minister of Justice De Clerck to offer suggestions to reorient it. His proposals undoubtedly had some consequences for the content of the new juvenile justice law passed in 2006, where restorative justice programmes such as conferencing and mediation are now considered required as a priority for juvenile judges before any decision can be taken. In the adult criminal justice system, the promoters of restorative justice have had less influence. Despite their great impact on the enactment of the law of 2005 on mediation at all stages of the criminal justice process, other discourses or practices were at the forefront of the rest of the reforms. Among them, the following can be emphasised: the diversification of the measures available to public prosecutors and the increasing power devoted to them, the focus on the offender’s acknowledgement of responsibility and the appeal to his or her ‘consensualism’ in the acceptance of the sanction, the movement towards the recognition of victims under the criminal justice system (including unilateral measures and the place given to him or her in prison and as part of conditional release) and the privatisation of some functions of the criminal justice system, and the discussions regarding the diversification of sanctions/penalties (whether restorative or not) (Kaminski, Snacken & Van de Kerchove, 2007). In consequence, these reforms were not always designed to give priority to restorative justice processes and to a real objective of providing ‘balanced’ reparations for victims, offenders and the community.
      Finally, the actors who dominate the practical field are academics, restorative justice practitioners and members of the judiciary, social work – in justice – and victim support fields. The variety of actors and the fields in which they work often lead to different interpretations of what restorative justice is and what it should do. For instance, our research found massive difficulties of collaboration between judicial authorities and mediation programmes because there is still resistance to transferring files to mediation programmes and where the credit allocated to mediation work is still fragile (Goedseels, 2016; Lemonne, 2016; Lemonne, Jacqmain & Buonatesta, 2013). There are also problems of cooperation between victims’ services and mediation programmes, as the victim’s services are still reluctant to suggest that victims participate in mediation, wary that they may be exposed to a secondary form of victimisation (Dachy & Bolivar, 2013; Lemonne, 2016; Lemonne et al., 2010).

    • 4. Conclusion

      Having outlined the main findings of this study on the development of restorative justice in Belgium, what can be learned for any further institutionalisation of restorative justice there and in other countries?
      At the methodological level, this study has referred to a broad but also fragmented and often multi-branched universe composed of various overlapping layers and bringing several institutions, social ‘agents’ and agencies together. By examining the intersecting discourses, practices and issues in restorative justice and connecting them with those of other social spheres, the act of conducting a sociological analysis of the subject in one European country undoubtedly poses a number of problems. This challenge proved even more striking when studying restorative justice in Belgium, since the institutional structure of the country is very complex, therefore inevitably increasing the number of actors, institutions and programmes that can be identified in the restorative justice field. In this context, it has sometimes been difficult to feel that we had a grasp on the large field of restorative justice.
      If such an extensive analysis has thus its limits, it has shown that the success of restorative justice in Belgium can mainly be linked to the maximalist position taken by its promoters. Indeed, as mentioned above, this model has not made a clear break with the principles and values of the criminal justice system. This position has helped to win acceptance for programmes associated with it in the normative and practical spheres. The model also encompasses a more diversified realm of potential, so-called restorative justice programmes (including restorative justice processes, but also unilateral measures), which suggests that restorative justice is extensively present in Belgium. By not breaking with the traditional justice system, restorative justice programmes have undoubtedly been made easier to accept in Belgium.
      However, if there are currently in Belgium many ‘small niches’ for restorative justice (where restorative justice is developed in a way involving the parties in terms of dialogue and concerted decision as in some mediation programmes), the analysis has also shown that these programmes remain above all implemented as a complement to traditional criminal justice. Moreover, the less these programmes are in contradiction with the criminal justice system, the largest is the caseloads (as community service as an autonomous penalty, for example). In addition, these programmes have often been distorted in their implementation, opening the principal concepts of restorative justice to diverse understandings and placing them within broader non-restorative philosophies or practical rationalities. In this respect, the importance of the sociopolitical context in which restorative justice discourses and practices take place, a context driven by multi-objectives and rationalities sometimes going in other directions than the promoters of restorative justice support at a conceptual level (penal/censure/rehabilitative model, risk management/unilateral victim policies/increasing power given to the public prosecutor…), has been emphasised. It is not surprising since it has also been shown that the restorative justice field being not really an autonomous field, it is continuously intersected by the rationales of other fields (judicial, political, forensic social work and victim services) where restorative justice promoters are not in a position of power.
      Therefore, if the current maximalist model developed by some academics and practitioners in Belgium is promising, the promoters of restorative justice should remain constantly vigilant about the following needs in order to circumvent the unintended effects mentioned above.
      Firstly, there is the need to establish a consistent restorative justice model also at the political and practical levels. This model should affect the heart of the criminal justice system above all (such as sentencing, for example) and be located within a broader philosophy of restorative justice.
      Secondly, there is the need to continuously sensitise practitioners from other spheres connected to restorative justice, such as the judiciary and victim support services but also the school environments, in order to raise their awareness about its objectives, values and potential benefits for the victim, the offender and the community. Indeed, one of the challenges of restorative justice programmes is the difficulties that practitioners and citizens have to envision restorative justice solutions for their conflicts in general and for crimes in particular. In this respect, it might be useful to gradually extend the restorative justice philosophy to other fields, in order to promote what could be called a ‘cultural revolution’ in the way that people envision conflict/crime resolution.
      Finally, there is the need to associate the implementation of restorative justice with the sociopolitical context in which it occurs, which undoubtedly also requires constant attention to the ethical and political values defended by restorative justice promoters. The implementation of restorative justice definitely cannot be limited to the implementation of technical programmes. Otherwise, restorative justice programmes will only surf on the waves of other trends of the criminal justice policy and risk leading to a redeployment of the penalty instead of its replacement. As the Belgian example showed, in this country, many restorative justice processes or measures are still developed as part of hybrid laws, including penal/censure, rehabilitative, risk management and reparative objectives. Hence, research in Belgium has shown that the effects of the hybridisation of these logics include the risk to rising pressure on offenders (in addition to being punished, they also have to rehabilitate and provide reparations to the victim) and to a higher level of punishment against the offenders imposed by the judicial authorities as a result of their failure to respect the many (sometimes irreconcilable) requirements imposed on them. It has also shown that this hybridisation of logics can lead to dissatisfaction among the victims. An attention to the sociopolitical framework in which restorative justice programmes are implemented should thus be of first interest for the promoters of restorative justice in order not to circumvent the potential benefits of the restorative justice programmes.

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    Noten

    • 1 For socio-ethical but also for instrumental reasons, in terms of general prevention and rehabilitation, Walgrave (1994: 61) pointed out that ‘retributivist justifications of penal justice are based upon a classicist view of mankind and society and canalize revenge within the procedures of a constitutional state. This cannot be sufficient to govern society. Instrumentalist arguments should at least be added to this. However, empirical research has clearly shown that the instrumentalist ambitions of penal law are not met.’

    • 2 Hergo is the acronym of ‘Herstelgericht groepsoverleg’, the Dutch term used to name restorative group conferencing programmes in Flanders.

    • 3 Law of 10 February 1994 organisant une procédure de médiation pénale, M.B., 27 April 1994; Law of 10 February 1994 modifiant la loi du 29 juin 1964 concernant la suspension, le sursis et la probation, pour ce qui concerne le travail d’intérêt général, M.B., 27 April 1994; Circular letters from public prosecutors establishing a procedure of local mediation (latter enacted by the law relative aux sanctions administratives dans les communes du 13 mai 1999, then modified successively by various laws in 2004, 2005 and more recently by the law of 24 June 2013 relative aux sanctions administratives, M.B., 31 December 2013).

    • 4 For example, Law of 1 August 1985 establishing financial aid by the State to the victims of intentional acts of violence and to occasional rescuers (Loi portant sur des mesures fiscales et autres, M.B., 6 August 1985); the law sur la function de police (which defines the notion of assistance to victims in article 46), M.B., 22 December 1992; the directive from the Minister of Justice of 15 September 1997 stating the implementation of a service for reception of victims at the level of the public prosecutors services.

    • 5 See Minister of Justice De Clerck, Politique pénale et exécution des peines. Note d’orientation, 1996.

    • 6 Note de politique générale of Minister of Justice Verwilghen, 1999; Minister of Justice Verwilghen, Circulaire ministérielle n°1719, 4 October 2000.

    • 7 See, for instance, the Law of 12 March 1998 that aims to ameliorate the penal procedure at the level of the information and instruction and gives a certain number of rights to victims, M.B., 2 April 1998; Law relative à la libération conditionnelle relative à la libération conditionnelle, M.B., 2 April 1998 and Law instituant les commissions de libération conditionnelle, M.B., 2 April 1998.

    • 8 Law of 22 June 2005, implementing Des dispositions relatives à la médiation dans le Titre préliminaire du Code de procédure pénale et dans le Code d’instruction criminelle, M.B., 27 July 2005.

    • 9 See Report of the Commission Dupont établissant les principes relatifs à l’administration pénitentiaire et à l’exécution des sanctions privatives de liberté and Law de principes concernant l’administration des établissements pénitentiaires ainsi que le statut juridique des détenus, M.B., 1 February 2005.

    • 10 See Report of the Commission Holsters, ‘Tribunaux d’application des peines, statut juridique externe des détenus et fixation de la peine’. Part 1 and Law of 17 mai 2006 relative au statut externe des personnes condamnées à une peine privative de liberté et aux droits reconnus à la victime dans le cadre des modalités d’exécution de la peine, M.B., 15 June 2006.

    • 11 Report of the Commission Holsters, ‘Tribunaux d’application des peines, statut juridique externe des détenus et fixation de la peine’, Part 2.

    • 12 Laws of 15 May 2006 and 13 June 2006 Modifiant la législation relative à la protection de la jeunesse et à la prise en charge des mineurs ayant commis un fait qualifié infraction, M.B., 2 June and 19 July 2006.

    • 13 Law of 17 April 2002 relative à la peine de travail, M.B., 7 May 2002.

    • 14 The objective of reparation becomes, before all, a modality of reinsertion for the offender. The latter must assume his responsibilities towards the victims, accept his or her moral and material debt and his or her guilt. The position of the victims also becomes more important. They can require compensation for their moral and material prejudice, if needed, in asking questions to the offender, directly and indirectly. They can also suggest conditions for the conditional release of the offender within the limits of their ‘direct and legitimate interest’.

    • 15 From which more than 50% of the cases are dealt with in the framework of a mediation process taking place between offenders and victims.

    • 16 The design of the pilot project ‘mediation for redress’ was built with the idea that the results of the mediation process could influence the further judicial decision, if victims and offenders were willing to. The idea was that ‘mediation not only results in a horizontal dialogue between the offender and the victim, but that there also follows the development of a vertical communication among both the parties on the one hand, and the judge magistrate on the other’ (Peters & Aertsen, 1995; Aertsen & Peters, 1998b: 115). This idea was adopted also by the law of 2005 (Lemonne, 2007).

    • 17 For instance, cases that are sent to mediation are ones that were not dealt by the criminal justice system before the introduction of these programmes. In addition, if mediation does not succeed, the public prosecutor can take another unilateral decision of sanction.

    • 18 Community service is a separate measure and is not conceived as an issue of a mediation process. Belgium is a Federal State in which juvenile justice is regulated and organised by the ‘communities’ (political entities). According to Dupont-Bouchat, Christiaens & Vanneste (2015), in the Flemish Community, mediation rapidly gained success in comparison with community service. On the contrary, in the French Community, community service gained more success than mediation. In Flanders, in 1999, approximately 600 youth offenders were sent to mediation and, in 2001, 1,300 were sent. In 2001, however, 85% of the mediations were decided by the public prosecutor and only 15% by the judge. In the French Community, less than 100 mediations were referred by the public prosecutor in 1998 and around 400 in 2011. As in Flanders, they were recommended by the juvenile judge in a minority of cases: 130 in 2002 and 160 in 2011. Restorative group conferencing is not extensively used in practice. A quantitative research conducted by Dachy (2014) establishes that between 2007 and 2010, only 145 restorative group conferences had been proposed by the juvenile judge to young delinquents in the French Community and 94 in 2011 in Flanders. For more details on these numbers, see Dupont-Bouchat, Christiaens & Vanneste (2015).

    • 19 The Dutroux case is a criminal case that took place in Belgium in 1996. The main protagonist of the case, Marc Dutroux, is, among others, the author of rapes and murders on children and teenage girls, as well as activities related to pedophilia, and was sentenced for these offences. The dysfunctions of the Justice and the police which were brought to light by this affair caused major disturbances in Belgium and led to important reforms there.


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