The (be) modernized Dutch Code of Criminal Procedure offers the judge a conditional power to pronounce a final judgment after mediation in criminal cases (article 573 DCPC-new). In so doing, the legislature is responding to the desire of the criminal court to be able to provide customized solutions in the handling of criminal cases brought before it. This end-of-case statement implies a substantive correction to the prosecution monopoly of the Dutch Public Prosecution Service, but does justice to the principle of subsidiarity that underlies opportune criminal justice. Moreover, it is in line with the broader debate within the Dutch legal discourse on responsive justice.

The Policy framework for restorative justice facilities during the criminal justice process describes which restorative justice facilities are available in the Dutch justice system when a case is settled by the public prosecutor’s office or is heard by a judge. The policy framework describes that mediation is only available when the decision of the police, to submit the criminal file to the public prosecutor, has already been made. Mediation currently plays no formal part in that decision. The aim of this article is to explore the possibilities of mediation when a case is handled by the police, taking into account the discretion of the public prosecutor to decide whether to prosecute or not (Dutch principles: ‘vervolgingsmonopolie’ and ‘opportuniteitsbeginsel’). The author explores the way in which legislation can take shape in the Dutch justice system and drafts a law for the application of mediation in an earlier stage of the criminal justice process.

Restorative justice has frequently been presented as a new criminal justice paradigm, and as something that is radically different from punishment. The author argues that this ‘oppositioning’ against criminal law is problematic, partly because the restorative justice movement remains too much on the margins of the criminal justice system. Restorative justice could reasonably be more widely adopted as a new form of punishment, which could potentially increase the use of restorative justice for the benefit of victims, offenders and society at large.

The author opposes Gade’s proposal and warns against a potential loss of authentic restorative justice solutions. Restorative justice should not be understood as a punishment practice, the restorative justice dialogue is valuable in itself. Moreover, the author wonders whether the focus on results advocated by Gade is really desirable.

According to the author, Gade’s argument lacks persuasiveness, in particular with regard to the elaboration of the concept of punishment and his proposal to adopt a consequentialist approach to punishment. We are in need of a critical interpretation of the concept of punishment, especially when it comes to restorative justice arrangements.

The author criticizes Gade’s consequentialist perspective, a way of thinking that is prevalent in restorative justice theory. The motives of restorative justice protagonists are much more characterized by a basic principle to deal decently with crime, wherein both perpetrators and victims are treated with respect.

This contribution discusses the role of punishment in restorative justice by looking at the concept of ‘institutionalisation’ as it appears in restorative justice literature and practice. Starting point is the well-known tension between effectively implementing restorative justice in the context of criminal justice on the one hand, and keeping its proper values and principles on the other hand. Different meanings of the process of institutionalisation are presented and the question is asked whether and how – in-between autonomy and dependence – a semi-autonomous position for restorative justice can be conceptualised and how this can be operationalised. A plural understanding of justice is adopted, where restorative justice is given a sufficiently autonomous position that evokes a permanent institutional dialogue with, and challenge for, pre­dominant conceptions of punishment.

This essay presents a reformulation of the concept of punishment, based on ‘calling to account’ and the moral task of debt repayment. It is argued that the restorative justice movement cannot afford to ignore everyday conceptions of punishment that are common in school and in the family. There too, punishment counts as an obligation to learn and make amends, where the punished person has to deal with an infringement of his freedoms.