This article appeared in the Newsletter of the
European Forum for Restorative Justice in June 2002,
Volume 3, Issue 2.
1. The past: Switzerland at the margin of two
stimulating trends
It is well-known that Switzerland has not been a pioneer
in the eld VOM. The federal organisation of this
country, i.e. the division of jurisdiction between the
federal government, in charge of material law and
the ‘Cantons’, each with a procedural law of its own,
is often invoked as an explanation for this low level
of activity. From a strictly legal point of view this
argument could, however, also be used in favour of a
stimulation of the development of mediation in penal
matters. Indeed, by playing on the hybrid character of
VOM, initiatives could have been developed at both
federal and Canton levels. The fact that VOM is so
poorly regulated is in our view not a result of the
specic political system of the country. It is rather due
to the fact that the two trends stimulating VOM in other
countries have played a clearly less important role in
Switzerland than elsewhere.
Restorative justice, the rst of those tendencies
traditionally favourable to VOM, has strongly inuenced
European codication during the 70s and 80s, by
encouraging the introduction of new possibilities for
negotiation between offenders and victims of crime
(without, however, the retributive and rehabilitative
paradigms being abandoned). For historical reasons
Switzerland has hardly participated in this debate.
The current Swiss criminal code, which came into
force on 1 January 1942, was promptly recognised at
European level as a pioneer text in various respects
(dualistic system, a progressive system for the execution
of penalties). This avantgarde label has had, in
certain respects, a paralysing effect. Indeed, during
the following decades other countries had no other
choice but to develop new codication and to organise
lively debates leading to opening up important spaces
for restorative justice. Switzerland, on the contrary,
remained satised with its recent and functional
legislation until the vast reform about to be completed.
As a result explicit references to the idea of reparation in
the criminal code remain exceptional and very formal
as they often only consider the nancial aspects of
reparation.
The rapid growth of restorative justice has not been
the only wind blowing in the sails of VOM. At a
more managerial level this institution has undeniably
been carried by the States’ concern to reinforce
their contested legitimacy by launching a ‘politique
de proximité’ (policy of proximity) in the elds of
justice, policing and social health. With regards to the
functioning of the courts in particular, VOM has been
perceived as a straightforward way of implementing the
third pillar of a ‘justice de proximité’, this is humane
proximity.
What about the ‘justice de proximité’ in Switzerland?
There is very little to say indeed! While much effort
has been put in this policy in France and Belgium - two
countries plagued by an enormous backlog in the courts
- quiet Switzerland was not confronted with the same
needs. One has to remember that this country’s crime
rates are among the lowest in the world. Moreover,
there is a very tight network of institutions, especially
judicial institutions covering the whole territory. The
population hence has a feeling of a kind of ‘natural’
proximity to its authorities. Finally the country lacks
the centralised competence which could allow for such
a policy.
In short, even were Switzerland to have
experienced the need to adopt such a policy, it would
not have had the structures to do so.
2. The present: “peripheral” practices from Geneva
During the last decade, a certain “fashion” for mediation
- and for VOM in particular - took place in Europe, and
the Swiss could not continue to ignore it. As a result
some recent initiatives took place, which we will briey
outline, since they give some indication of the present
stage of evolution.
A rst interest was shown in the mid-90s with the
implementation of a certain number of innovative but
somewhat “peripheral” practices. They found their legal
basis in the framework of the few dispositions of the
criminal code allowing for reparation. These practices
were developed in three specic elds:
• The rst concerns juvenile justice. Here, the legal
basis was given by two provisions of the criminal
code. The practices were created at the level of a
few cantons and were usually due to a magistrate’s
personal initiative. In this respect, one must however
regret the lack of scientic supervision and evaluation
(which moreover was fatal to some of them). The
projects currently in operation use widely differing
referral procedures. In some projects, the judge for
juveniles conducts the mediation process himself or
herself. In other projects, in contrast, the cases are
transferred to external social workers.
• The second legal framework allowing for VOM
is art. 37 of the criminal code relating to the
execution of prison sentence (médiation carcérale).
The amendment to this article enshrines in Swiss
law the adoption of a progressive prison regime.
The adoption in 1991 of a Law providing for help for victims of crime (Loi sur l’aide aux victimes
d’infraction - LAVI) complemented this law by
adding reparation of the damage experienced by the
victim as an additional criterion in the execution
of a prison sentence. In practice, two experiments
with mediation in prison have become known for
their reparative commitment: the project of Saxerriet
penitentiary (St-Gall Canton) already implemented
in the 80s, and the project TaWi initiated a few years
ago only at the level of the prison authorities of Bern
Canton.
• Lastly, VOM was also implemented in the framework
of dispositions relating to the ght against racism.
On September 25th 1994, the Swiss people approved
the implementation of art. 261 bis of the criminal
code prohibiting behaviour constituting such
discrimination. However, the application of art. 261
bis of the criminal code soon showed limitations.
These were linked both to the difculty of
establishing the facts and to a very restrictive
jurisprudence. However, associations involved in the
ght against racism have contributed through the use
of mediation to a wider and more efcient application
of this article. In particular, an association called
ACOR (Association Romande contre le racisme)
has offered to people the opportunity to embrace a
more restorative approach, as an alternative to the
retributive penal perspective linked to the judicial
determination of facts and to the imposition of a
penal sanction.
It is only recently that VOM was truly envisioned as
an “ofcial” measure, also for adults, and in relation
to the protection of person and property provided by
law, and to be implemented at the prosecution stage.
The objectives of this implementation were to introduce
more “ofcial” practices and make them better known
by the public, as well as to give the public prosecutor
new competencies. The development of a specic legal
provision was considered necessary to counter the
confusion engendered by the vague legal framework
surrounding the practices until then. Specically, the
Canton of Geneva - i.e. one of the Federal states
and not the Confederation - was the instigator in the
legislative process. It is worth mentioning that this
canton’s long tradition of “discontinuance of a case at
the prosecutor’s discretion” accelerated the exploration
of a “third way”.
It was a private association, the Groupement Pro
Mediation (GPM) that gave the rst impetus for the
legislative process. The bill proposed by this association
suggested the principle of referral to VOM (médiation
pénale déléguée). This measure was assumed to be
fully part of the Code of Criminal Procedure. The
introduction of this measure has involved the revision
of two legal texts: rstly, a series of provisions have
been inserted in the law on administration of justice (loi
d’organisation judiciaire), to regulate the accreditation
of mediators, their duties, and their relationship with the
public prosecutor service. Secondly, an article has been
added to Geneva’s Code of Criminal Procedure (Code
de procédure pénale genevois) in order to describe - and
explain step-by-step in 7 paragraphs - the procedure for
referring a case to mediation. The law was adopted by
the Grand Counseil genevois on February 16th 2001. It
came into force on August 15th 2001. Eight independent
mediators have been sworn in.
3. The future: current revisions of Swiss criminal
law
For a while it appeared that VOM was winning
Switzerland ‘bottom-up’, i.e. through the procedural
jurisdiction of the federal entities. Indeed, a rst
codication of VOM was produced in the Canton of
Geneva and similar projects can be noticed in other
Cantons (particularly in Vaud and Zurich). This would
however not take into account different penal reforms
which are presently nearing completion. Some of them
are so old we had almost forgotten about them! As
they concern substantive as well as procedural law, and
adults as well as juveniles, they are likely to radically
modify the ‘Helvetic penal landscape’. In four areas the
draft legislation defends VOM or at least RJ.
• The revision of the criminal code, launched in the
beginning of the 80s, is the oldest and the most
extensive reform. Paradoxically it is also probably
the one inspiring the least enthusiasm in the context
of our topic. The draft law currently under discussion
is limited to providing, in art. 53, that reparation
will be a reason for exemption from a penalty
(exemption de peine). Based on the Austrian and
the German models, the provision confers upon the
public prosecutor and the judge respectively the
discretion not to prosecute and not to impose a
penalty ‘when the offender has repaired the damage
or completed all the efforts one could reasonably
expect from him to compensate the wrong caused’.
Even if the perspective is reparative here, mediation
is mentioned only very discretely, only in the
explanatory memorandum of the Federal Council (le
Conseil fédéral).
• A second reform with an important symbolic impact,
and long awaited by practitioners, consists of the
realisation of a unication of criminal procedures
which were until now cantonal. In this context one
of the most difcult and most contested operations
has been to choose which of the different cantonal
criminal procedures is to be applied to the whole
Swiss territory in the future. Concerning VOM art.
347a of the draft code is of particular interest. In
cases in which art. 53 criminal code applies, the
public prosecutor is given a key position, to invite
the parties from this stage of the procedure on to
participate in ‘negotiations aimed at reparation’. The
public prosecutor is also empowered to ‘delegate this
mission to a person authorized and qualied for such
purposes’.
• The last two texts under consideration concern
juveniles. The rst one is a completely new
substantive law consolidating in a separate text
matters concerning juveniles, which were formerly
integrated in the criminal code. The second text
is also new, but for another reason. It achieves
unication of the procedure regarding juveniles,
which is - as mentioned above - also happening for
adults. Both texts contain a provision (art. 7 of the
substantive law and art. 28 of the procedural law)
which establishes, in some detail, the possibility of
clearly delegated VOM for those cases in which the
main facts are established and the juvenile and his
legal representatives consent to participate.
4. Conclusion
As shown above VOM is in Switzerland in full
development, after a rst period of stagnation. Different
signs are very encouraging in this respect. The specic
question as to the power of the impact of the federal
texts under development remains, however, undecided.
The pace of the reforms remains slow and numerous
political obstacles need to be circumvented before any
of this new legislation comes into force. It is therefore
necessary to continue the presently existing cantonal
practices, and even to legislate in the meantime at
cantonal level on the basis of the Geneva model, in
order to develop a volume of experience by the time
the new federal provisions come into effect. More
fundamentally, we have to keep a sharp eye on all the
details of the new federal texts. In their current form the
drafts contain indeed certain shortcomings. Systematic
delegation of the VOM to a third party is, for example,
not mandatory and the eld of application of mediation
is limited to very minor cases. In order to remedy this,
the wisest attitude to adopt seems to invite the legislator
to stick as closely as possible to Recommendation
R(99)19 of the Council of Europe on Mediation in
Criminal Matters, the quality of which is recognised
unanimously.
Author:
Julien Knoeper
julien.knoeper@unine.ch
lawyer, researcher and consultant
University of Neuchâtel (Switzerland)
Invited researcher at the criminology departments of the Catholic
University of Leuven and the Free University Bruss
