Atapovich A.S. - the student 4 courses,
the research supervisor
Tretjakov G.M. Cand.Jur.Sci.,
Grodno State University
of J. Kupala, Belarus
MEDIATION IN CRIMINAL PROCEDURE
We
consider positive features of mediation and problems of mediation development
in criminal procedure of Republic of Belarus in terms of the countries of
Anglo-Saxon legal family. This issue is relevant for the Republic of Belarus.
This is due to appearance of new alternative ways of conflict resolutions in
criminal justice process.
For
the first time mediation appeared in the USA. Initially it was applied only in
labor and family disputes. Today this procedure is applied practically in all
spheres. Mediation is one of a number of arrangement conflict approaches which
uses a mediator to help the disputing
parties to resolve their conflict. Unlike arbitration, where the third party
actually makes the decision how the conflict should be resolved, the mediators
only assist the parties in their efforts to formulate their own solution. Thus,
mediators accommodate parties to a dispute and help them describe the problem
in terms of privity of contracts and needs. The mediator help the parties
assess the relative merits of the different options and draft an agreement that
works best to satisfy everyone’s interests.Mediation is a process in which the
parties agree to work with a trained and impartial expert to reach an agreement
acceptable to both parties. Application of mediation in criminal procedure is to
resolve a conflict in shorter time outside criminal justice resorting to
mediation of the third parties focused on prevention and fight against crime.
The
European practice, existence of a significant number of the Recommendations, the
UN and the Council Europe Declarations and Resolutions determine the legislation should
facilitate the implementation of mediation. They all indicate a wide institute
of mediation in criminal trial.
The
article 7 "Declarations of Basic Principles of Justice for Victims of a
Crime and Abuse of Power" provides that it is necessary to use informal
mechanisms of disputes settlement, including mediation, arbitration and courts
of a common law or local practice to promote compensation to the victims.
In
world practice the institute of mediation in criminal is used to:
-
improve of judicial system in the sphere of criminal justice process and its
elements;
-
use the of alternative ways of a conflicts resolution which exist in parallel
with judicial system;
-
consider of crimes of small severity when reconciliation of the parties is
possible or compensation for of moral and material damage is enough.
Features
of Mediation:
Mediation
is a private process, while majority of court procedures are open to the
public. As a rule solution of a case through mediation is less expensive than
an crimination of discrepancies through litigation. There are many different models of mediation. Unlike some
countries, the United States does not have homogeneous instruction and standard
qualifications for mediators. The mediators can be psychologists, attorneys, or
a combination of these and other professions.
In
case of successful realization of mediation procedure the person who committed
an offense should restore the violated right in the appropriate for the victim
from: apology; payment of a sum of money, execution of works for the public
good, compensation of property damage and etc. In case of slight damage the
victim can be satisfied with apologies as the fact of the criminal repentance.
Mediation
is a fair and effective process to help resolve disputes and reach an
agreement. A neutral mediator assists to reach a voluntary understanding.
The
styles of mediation vary considerably according to the needs of the parties and
the mediator. In North America there is a tendency for the mediator - to be
neutral and impartial. That means he is not related with the disputing parties
in any way and does not try to capitalize in a special way. Therefore typical
mediators do not incline to one party or to one solution over another. However,
other cultures use mediators who are famous persons. They are people who are
related to one side or the other but who are highly respected by both sides.
The
mediator helps to define real interests of the parties and to find mutually
beneficial solution of the conflict. In Belarus mediator is neither a judge not
the arbitrator. Activity of a mediator can be carried out along with other
kinds of activity [2, page 12]. Mediation as well as lawyer activity, isn't
business activity. At the same time, work of a mediator is paid [4].
The
mediator doesn't allow conflict strengthening, ensures psychological and
physical safety. Other persons anyway affected by a crime take part in
programs. These persons can give support to the parties, both in development of
the decision and in its further realization.
If
mediation is used as part of criminal procedure it should be carried out
according to the fundamental rights of the participants. The requisite
conditions for defendant’s agreement to participate in mediation [3, page 178].
Should be an admission of facts of the case and liability for what happened.
Mediation
allows the parties to investigate all aspects of the conflict, to reveal its
essence and to discuss all important for the parties moments, to reach original
interests, after all even the parties do not quite clear realize the true
interests. The mediator directs the negotiations so that the parties understand
their own interests and interests of each other, and realized what exactly
needs to be done in order to resolve a conflict fairly. This helps to reach
such variant of the agreement which takes into account the true interests of
conflicting parties, effectively resolving the conflict and minimizing risk of
its repetition.
Mediation
is a well-structured method of mediation in resolution of dispute between two
parties (the victim and the offender) where the third party (intermediary
mediator) maintains neutrality [3, page 178].
All
information relating to mediation is confidential and can't be divulged without
consent of the party which provided it. The parties and a mediator have no
right to refer to such information during court session and also to divulge
its. The parties avoid bad publicity of the conflict, its details and
conditions of the arrangement. Limiting of confidentiality of mediation is
information about conclusion of agreement of mediation application and
termination, as well as information about upcoming and (or) committed crimes
endangering citizens life and health.
The
victim really takes part in determination of a measure of criminal punishment
and receives that amount of compensation which defines it as a compulsory
condition of the arrangement. Benefits for a guilty are also obvious because
repentance and compensation of the caused damage commute a penalty, and
sometimes and exclude criminal liability [1, page 22].
Today
in Belarus mediation practice continues its formation. In the country has some
dozens of practicing mediators which extensive theoretical base have already
had practical experience of conflicts resolution in mediation. Since 2012 the
Educational and practical institution " The Center of Mediation and
Negotiations" works. It unites the most experienced mediators who are engaged
in mediation advance as non-judicial means of conflicts resolving.
The
parties of mediation don't need to spend money on a legal cost (which can make
a round sum), crossings, and an involvement of experts and attorneys’ fees. The
costs of mediation are limited with payment of mediator remuneration which size
is defined by the parties and a mediator and is fixed in the agreement on
mediation application. Many disputes which in courts are considered for years
can be resolved in mediation for some sessions. A mediation session lasts about
2,5 - 3 hours. According to the Law of Republic of Belarus "About
mediation" the term of carrying out the mediation (consisting of several sessions) can't
exceed six months.
Formation
of mediation helps to create an effective judicial system; to reduce a volume
of the lawsuits and expenses associated with their consideration; to ensure
fast settlement of the conflicts and reduction of their negative consequences;
to encourage of such conflicts settlement which is equitable to interests of
the parties; to ensure availability and variety of procedural forms; to
supplant illegal, power ways of a conflicts resolution.
The
person involved as a mediator should have authority with the arguing parties as
the expert; have necessary experience and knowledge to the parties in a
settlement of the legal dispute (or other conflict) to their mutual
satisfaction. Developing and improving mediation procedure in the country, it
is necessary to make all efforts to ensure that the disputing parties in
selecting an alternative means of conflict solution will be sure that it is
competent, quick, efficient, cost-effective and confidential.
Within
the Belarusian system of criminal justice process the mediation can be applied as
the additional criminally-remedial measure aimed at achieving of reconciliation
between an accused and a sufferer to stop prosecution or adjudication in the
simplified way taking into account the agreement reached by the parties.
Afterwards the mediation can be applied and as true alternative to criminal
prosecution, until initiation of legal proceedings because achieving of the
conciliatory agreement between the parties of the criminal conflict will allow
the competent authorities and officials to abandon initiation of criminal
prosecution.
References:
1. Арутюнян, А.А. Медиация
как способ урегулирования уголовно-правовых и предпринимательских споров:
сравнительно-правовой анализ / А.А. Арутюнян, Е.А. Добролюбова //
Законодательство. – 2012. - №7. – С. 21-23.
2.
Бельская,
И.А. Медиация в действии: суть, содержание, перспективы / И.А. Бельская //
Юрист. – 2013. - №9. – С. 11-14.
3.
Лупинская,
П.А. Решения в уголовном судопроизводстве: теория, законодательство и практика
/ П.А. Лупинская. – М.: юрид. литература, 2010. – 279 с.
4.
О
медиации: Закон Респ. Беларусь, 12 июля 2013 г., № 58-З // Консультант Плюс:
Беларусь. Технология 3000 [Электронный ресурс] / ООО «ЮрСпектр», Нац. центр
правовой информ. Респ. Беларусь. – Минск, 2014.