Mediation in criminal cases and restorative justice
In theory and practice, the term “mediation in criminal cases” is often used along with the term “restorative justice”. According to the Recommendation CM/Rec(2018)8 of the Committee of Ministers to member States concerning restorative justice in criminal cases, adopted by the Committee of Ministers on 3 October 2018 at the 1326th meeting of the Ministers’ Deputies: “Restorative justice refers to any process which enables those harmed by crime, and those responsible for that harm, if they freely consent, to participate actively in the resolution of cases arising from the offence, through the help of a trained and impartial third party… Depending on the country in which it is being used and the manner in which it is administered, restorative justice may be referred to as victim‑offender mediation, penal mediation, restorative conferencing, family group conferencing, sentencing circles or peacemaking circles, inter alia”. Thus, mediation in criminal cases is a form, an instrument of restorative justice.
According to the Recommendation No. R (99) 19 of the Committee of Ministers to Member States concerning mediation in penal cases, adopted by the Committee of Ministers on 15 September 1999 at the 679th meeting of the Ministers’ Deputies: mediation in penal cases is “any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of cases arising from the crime through the help of an impartial third party (mediator)”.
Mediation is the most common form of restorative justice. The purpose of mediation in criminal cases is to be able to resolve the situation in connection with the commission of a criminal offense. The victim has the opportunity to listen to the explanations of the offender, and the offender can apologize, understand the emotional state of the victim. As a result of the mediation procedure, the offender has a chance to resocialize to correct in order to avoid committing new offenses. Such a form of restorative justice as mediation is being introduced in Ukraine as a Pilot Project based on the Free Legal Aid System. However, only for minors and under certain conditions.
In 2019, a joint order of the Ministry of Justice of Ukraine and the Prosecutor General’s Office of Ukraine (№172/5/10 of January 21, 2019) on the implementation of the Pilot Project “Recovery Program for Juveniles Suspected of Committing a Criminal Offense” was adopted. This Pilot Project on restorative justice was implemented in six regions of Ukraine. In 2020, all regions of Ukraine joined the implementation of this Project.
According to the above order, mediation in criminal cases is a voluntary, out-of-court procedure in which a juvenile suspected of committing a criminal offense and a victim, with the help of a mediator trying to resolve the conflict by concluding an agreement on the application of the Juvenile Recovery Program. in committing a criminal offense.
The conditions for the use of mediation in criminal cases under the Juvenile Recovery Program are:
– the presence of the injured party;
– committing a juvenile criminal offense or a felony for the first time;
– recognition of the fact of committing a criminal offense by a juvenile;
– consent of the juvenile and the victim to participate.
Mediator in criminal cases
The mediator involved in the Juvenile Recovery Program is a lawyer who is included in the Register of Advocates Providing Free Secondary Legal Aid and who has been trained. Lawyers were selected on a competitive basis. The lawyers who passed the competition were trained on the topic “Basic skills of a mediator in criminal cases”.
Procedure for implementing the Juvenile Recovery Program
If the circumstances of the criminal proceedings meet the above conditions of application of the Juvenile Recovery Program, the following procedure is carried out.
- the prosecutor informs the parties about the possibility of implementing the Juvenile Recovery Program;
- the parties fill in the application for participation in the Program;
- within one working day after filling in the application, the prosecutor transmits the information to the Regional Center of the free legal aid;
- within one working day after receiving the application and information from the prosecutor, the Regional Center of the free legal aid decides on the application of the Program and issues an appropriate order for mediation to the mediator, and organizes a meeting between the parties and the mediator;
- the mediator explains the procedure, consequences and conducts mediation between the juvenile and the victim; conclusion of an agreement/refusal to conclude an agreement;
- no later than the next working day after the conclusion of the agreement, the mediator shall transfer it to the Regional Center of the free legal aid or notify the refusal to conclude it;
- after the implementation of the agreement, the Regional Center of the free legal aid prepares information on the results of the juvenile’s participation and sends it to the prosecutor;
- prosecutor: attaches the agreement to the criminal proceedings (if before the end of the pre-trial investigation); explains to the juvenile and representative the right to submit the agreement independently in the relevant court session (after the pre-trial investigation);
- the prosecutor within seven working days notifies the regional center of the decision in criminal proceedings made in accordance with Article 283 of the Criminal Procedure Code of Ukraine
- The prosecutor shall, within ten working days of the entry into force of a court decision in criminal proceedings against a juvenile who participated in the Program, provide a copy and thorough information on the pre-trial investigation and trial to the Department of Child Protection and Violence of the Prosecutor General’s Office.
The website of the Coordination Center of the Free Legal Aid periodically covers the results of the implementation of the Pilot Project of the Juvenile Recovery Program. In most cases, the person who committed the offense compensates for the damage, reconciles with the victim and has the opportunity to start a new life. Thus, the first steps in the field of mediation in criminal cases are being taken in Ukraine.
By the way, at the Law Faculty of the Yuriy Fedkovych Chernivtsi National University within the Grant Project “Mediation: Training and Society Transformation (MEDIATS)” of the EU ERASMUS+ KA2: CBHE Program the Educational-Professional Program “Mediation” is implemented. One of the disciplines presented to the masters of EPP “Mediation” is “Restorative Justice”.
Assistant Professor of the Department of Public Law
Member of the MEDIATS Project team
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