RJ in Switzerland

Unlike most European countries, Switzerland has not yet given Restorative Justice a place of choice, although the presence of numerous public actors and private associations promoting this approach show the importance of the debate in this country as well.

In the juvenile criminal law, mediation is prescribed by the federal legislation and the laws of some cantons, but it is still rarely used in practice. Some cantons, however, have long experience in mediating offenses committed by minors. Concerning the adult criminal system, there is no legal framework on the federal level, and RJ initiatives face significant barriers. Yet, according to some authors (Pastore & Glasner, 2010; Perrier, 2011), the current legal vacuum would not be a legal obstacle to the development of criminal mediation in proceedings involving adult authors.

Here we briefly review[1] the existing legal framework in adult and juvenile criminal law as well as past and present applications of criminal mediation and the future possibilities, within this legal framework.

[1] For more details, see Perrier's (2011) comprehensive thesis on mediation in Swiss criminal law.

Adult criminal law

The cantons of Geneva and Zurich stand out as pioneers in the domain of criminal mediation: the first, has adopted a cantonal law on penal mediation in 2001, although, in practice, it has been little used (Perrier, 2011, pp. 193-194); the second, has set up a pilot mediation project for both adults and minors in 2001, which was the subject of an evaluation report in 2006 (Schwarzenegger, Thalmann, & Zanolini, 2006). In particular, the report underlines that the costs of mediation are much higher than those of a traditional criminal procedure, which has influenced the decision not to introduce criminal mediation in the 2011 Code of Uniform Criminal Procedure (Faller, 2009). The entry into force of the CPP has, in Zurich and Geneva, put an end to the practice of criminal mediation.

There are also pilot mediation projects in prison ("prison mediation"), which were implemented in the penal establishments of Saxerriet (St. Gallen) in the 1970s and then in the 2000s in the canton of Bern (project TaWi) (Perrier, 2011). These projects were made legally possible by the introduction of "compensation for damage" in the sentencing plan (Article 75 al. CP), following the adoption of the Law on Assistance to Victims of Crime (LAVI) (Knoepfler, 2002), which places the rights of victims at the center of attention in the criminal justice system.

Following the failure of the inclusion of criminal mediation in the CPP (draft article 317 CCP), there is currently no legal framework regulating the practice of mediation in adult criminal law. However, as Pastore and Glasner put it, "the silence of the law does not exclude penal mediation and this can be viewed in different ways, on the basis of article 316 CPP (Conciliation, editor's note): Delegated mediation, associated with a conciliation procedure, or private "(Pastore & Glasner, 2010, 751). According to Pastore & Glasner, 2010, Perrier, 2011, it is possible to carry out criminal mediations and to present the results of these mediations in ongoing criminal proceedings.

[1] This possibility nevertheless requires considerable efforts from the cantons and a certain flexibility to adapt the ideal of penal mediation to the possibilities offered by the current legal framework.

Criminal law on minors

The Federal Law on Penal Procedure for Minors (PPMin) provides, in Article 17, the possibility of suspending the proceedings at any time in order to initiate mediation, irrespective of the gravity of the offense committed. If the mediation results in an agreement, the criminal proceedings are automatically terminated. The cantons may, if they so wish, lay down more precise rules in this matter. For example, some cantons have adopted very detailed legislation on criminal mediation (such as Fribourg, Geneva, Neuch√Ętel, Ticino, Vaud and Zurich) while others simply have a few provisions dealing with the topic, or do not even mention mediation in their legislation (Perrier, 2011). The cantonal legal provisions concern in particular the qualities required to serve as mediator, the status of mediators (employees or self-employed persons) and the modalities of mediation (role of the various actors, execution of the agreement resulting from the mediation, etc.).

Data on the implementation of mediation in juvenile justice in Switzerland are scares or non-existent. According to Perrier (2011), only the canton of Fribourg makes systematic use of this tool for conflict resolution. The outcome document of a press conference organized by the Cantonal Court of Fribourg allows to establish an order of magnitude concerning the practice of mediation: "between 1 November 2004 and 14 May 2008, 284 mediations were initiated, involving 495 Minor authors and more than 350 injured or victims" (Perrier, 2011, p.241). However, no systematic and in-depth study has yet made it possible to know and understand the daily functioning of this method of resolving criminal conflicts and its consequences on the penal system.