WHAT IS THE ADVANTAGE OF MEDIATION OVER CONVENTIONAL CRIMINAL PROCEDURES?

 

The state has to take tough action against perpetrators of serious offences. In the case of offenders who have committed minor offences, however, it is more expedient to seek alternative solutions. One such tool is mediation, a quicker and cheaper process that gives the participants greater say than court procedures, and treats them as equal partners. If the mediation proves successful, the victim receives reparation, and the criminal procedure may be closed.

 

Victims

• may participate in the mediation process on a voluntary basis,

• are active participants and shapers of the process,

• may receive reparation suited to them more quickly and easily,

• may meet with the offender which can help in overcoming the trauma of the crime, and their fears may disappear or be allayed,

• can become aware of the reasons behind the offence, which can help to prevent them from becoming victims again in the future.

 

Offenders

• may participate in the mediation process on a voluntary basis,

• are active participants and shapers of the process,

• may repair the damage they have caused in a way that is really achievable, and apologize for their actions,

• assume responsibility for their actions and face the consequences of these

• may avoid continuation of the criminal procedure, meaning they do not acquire a criminal record, or their punishment may be reduced without limitation,

• may meet with the victim which can contribute to preventing re-offending

 

WHAT IS THE MEDIATION PROCESS?

Mediation is a conflict-management method designed to achieve restorative justice (offenders should assume responsibility and pay the penalty for their deeds, with the greatest emphasis on reparation of the victim, and the affronted community should be conciliated). This method may be applied to solving a variety of disputes or conflicts (e.g. disputes involving neighbors, families, couples, and companies).

 

The most important characteristics of the mediation process are as follows:

• in disputes between two or more parties

• with voluntary consent of the parties

• a neutral third party (mediator) mediates.

 

The mediator

• helps clarify the nature of the conflict,

• helps find a solution satisfactory to both parties.

 

It is the parties that decide on the terms and content of the agreement, not the mediator.

 

 

IN WHAT CASES MAY MEDIATION BE USED IN CRIMINAL MATTERS?

The mediation technique has already been used in the fields of civil law, family law and employment law. From 2007 onwards, it can also be applied in criminal procedures. According to Article 221/A of the Code on Criminal Procedure (Act XIX of 1998)., the mediation process may be used in criminal procedures dealing with certain offences against the person, property or traffic offences if the crime is punishable with no more than five years’ imprisonment, and the offender has made a confession during the criminal investigation.

The possibility of mediation is excluded in several cases, for example, if the offence caused death or the offender is a multiple re-offender.

 

 

WHO CAN INITIATE THE MEDIATION PROCESS?

If the conditions set down in law are met, the mediation process can be voluntarily initiated by either the offender or their defense lawyer, or the victim or their lawyer.  The decision, however, on whether the case will be referred to mediation is always made by the public prosecutor or judge. Mediation many only be used once in a given criminal procedure.

 

 

WHO ARE THE MEDIATORS?

Specially trained probation officers of the Office of Justice Probation Service act as mediators during the mediation processes in criminal cases. From 1 January, 2008, certain lawyers (complying with the legal conditions) will also be able to act as mediators.

The mediation process is exempt from duties and free of charge.

 

 

HOW DOES THE MEDIATION PROCESS WORK?

Having received the decision of the court or public prosecutor, in the preparatory phase of the mediation process, the mediator contacts the parties separately, informs them about the aim and process, and if necessary meets them in person. It is important that the mediation process can only be performed with the participants’ voluntary participation.

If the case is already suitable, and the parties are prepared, the mediator arranges a mediation session, at which the victim and the offender are present at the same time. The parties if they wish are each allowed to bring 2 helpers (relatives or friends) with them to the session.

During this session, with the help of the mediator, the parties have a chance to tell the other party how the given events affected them. The offender may  assume responsibility for their deeds and apologize. The parties may agree on financial reparation or another form of reparation for the damage caused by the offence.

The mediator records the agreement in writing on the premises, and this document is signed by everyone present. The agreement is sent to the public prosecutor or judge dealing with the case. The details discussed during the mediation process – except for the content of the agreement – are confidential. The participants are under an obligation of secrecy even after the procedure is over.

The mediator checks whether the agreement has been fulfilled, and informs the public prosecutor or judge of this. Providing that the terms of the agreement have been successfully met ,depending on the severity of the offence the criminal procedure may either be closed (in the case of offences punishable with no more than 3 years’ imprisonment) or the judge may mitigate the punishment imposed without limitation (in the case of offences punishable with 3 to 5 years’ imprisonment). It is important to note that these consequences can only be applied in the case of agreements made during the mediation process.

If the parties fail to come to an agreement, or the terms of the agreement are not met by the parties, the criminal procedure proceeds in its due course.