Zhanibekov A.K.

Doctor of PhD, associate professor of Department of Criminal law, Criminal procedure and Criminalistics, Law faculty, Al-Farabi Kazakh National University

Seytimbet B.B.

master of 1 course of Department of Criminal law, Criminal procedure and Criminalistics, Law faculty, Al-Farabi Kazakh National University

PROBLEMS OF APPLICATION OF THE PROCEDURE OF MEDIATION IN CRIMINAL LEGAL PROCEEDINGS OF THE REPUBLIC OF KAZAKHSTAN

Annotation. In article questions of application of mediation in criminal trial are considered. Authors suggest considering mediation not only as the complex conciliatory procedure, but also separately as a possibility of the indemnification caused to the victim.

Keywords: criminal legal proceedings, alternative procedure, mediation, criminal and legal conflict, recovery justice, participants of criminal legal proceedings, victim, defendant.

The last decades search of more humane and effective ways of permission arising in the society of the social conflicts, especially criminal and legal, involving more serious legal consequences connected with criminal prosecution around the world is actively conducted. Among such ways the significant role is assigned to programs of recovery justice alternative to official criminal prosecution.

Now there are various ways of permission of the criminal and legal conflicts which are the cornerstone of recovery justice such as programs of reconciliation of the victims and offenders (mediation), family conferences, justice circles, special recovery programs for especially serious crimes [1].

Mediation (from latin “mediare”- to mediate) - a form of extrajudicial settlement of disputes by means of the third neutral impartial party - a mediator (intermediary). Mediation is the softest form of alternative settlement of disputes. During the procedure of mediation of the party, participating in the conflict, independently come to the mutually advantageous decision, relying on experience, knowledge and abilities of a mediator. Settlement of dispute completely depends on will of arguing. Allocate the following main opportunities of mediation:

mediation helps to save time, money and emotional forces of disputing parties;

at her carrying out the situation, the organization, the regulations and content of process can be defined individually;

mediation is focused not so much on the conflict (examination who is right and who is guilty) or on a prize how many on constructive finding solutions;

in respect of time expenditure mediation can be easily arranged under needs of participants and can consider emotional and personal aspects of a dispute;

the sphere of private interests of participants is completely protected as process of mediation is a confidential process;

mediation allows disputing parties to look in the future and to use the creative abilities;

at settlement of dispute by means of mediation the reached agreements, as a rule, answer the real situation that not only promotes their realization in life, but also does their implementation by mutually acceptable and natural step;

not the legal claims connected with the past, and future interests of conflicting parties are main;

difficult cases which can't be resolved for the benefit of both parties take place (or can be resolved unsatisfactorily).

According to us, the listed opportunities not only are quite applicable in criminal legal proceedings, but also are necessary for application as it is worth to remember the existing problems of production on criminal cases. As the main it is possible to distinguish from them: duration of terms of investigation and judicial review.

Legalization in criminal trial of the procedure of reconciliation with participation of the intermediary (mediator) as notes A A. Shirkin, will allow to compensate harm to the victims, and suspects (the defendant, the defendant) will give the chance to be exempted from criminal liability and also will allow to lower load of law enforcement agencies, courts, the system of execution of punishments [2, page 13].

Really, introduction of mediation to criminal trial can give such opportunities to the listed participants, however it is impossible to reduce mediation only to reconciliation. Mediation gives ampler opportunities to the parties especially as not each victim, having agreed to the procedure of mediation and indemnification, is ready to forgive completely the defendant and to reconcile with him.

Need of introduction in criminally - the procedural legislation of the procedure of mediation indicates high crime rate in the country including among minors, insufficient security of interests of the victims. Also, it is necessary to consider that tendencies to differentiation of a procedural form, allocation of the simplified productions allowing to accelerate certain affairs production, to increase within criminal trial are characteristic of domestic criminal trial.

We consider that application of mediation is possible both on pre-judicial, and at judicial stages of criminal trial. Moreover, the possibilities of mediation will be used earlier, the quicker to the victim harm will be compensated and it is less spent public funds for criminal proceedings.

The greatest distribution among the specified ways was gained by institute of mediation on criminal cases. According to the Recommendation of Committee of ministers of the Council of Europe No. R (99) 19 devoted to mediation on criminal cases (it is accepted by Committee of ministers on September 15, 1999 at the 679th meeting of representatives of Committee), mediation is understood as any process within which the victim and the offender is given an opportunity, in case of their voluntary consent, by means of the impartial third party (mediator) to take active part in solution of problems, resulted from crime. At the same time in the explanatory note to the Recommendation it is noted that mediation needs to be considered as addition to traditional criminal trial or as an alternative to him.

The European community recommended also further introduction of conciliatory procedures for increase in efficiency of legal proceedings. So, the guide of the European Commission to efficiency of justice of December 7, 2007 to improvement of implementation of earlier accepted Recommendation "About mediation on criminal cases" was accepted.

In many foreign countries mediation in criminal trial has received legislative fixing. At the same time ways of registration of mediation in the different countries differ: in laws on juvenile justice (Austria, Germany, Finland, Poland, some states in the USA), in the Code of Criminal Procedure (Austria, France, Belgium, Finland, Poland), in the criminal code (Germany, Finland, Poland), in the special law on mediation (Norway, Finland, Moldova), in the law on service of a probation (Czech Republic, Latvia) [3].

At the same time in foreign countries various models of mediation depending on a ratio of this procedure with a usual order of legal proceedings are allocated. In the first case business is brought out of criminal trial at rather early stages or isn't excited at all; in the second – mediation is included in legal proceedings as his component. Here mediation isn't a full alternative to criminal prosecution. If the parties manage to come to the agreement, then it will influence further results of judicial proceedings. The third model assumes that mediation is the procedure, additional to traditional legal proceedings, which is carried out after adjudication.

At the present stage alternative forms of settlement of disputes (conflicts) are generally applied in economic, civil, labor and administrative matters. However, as it has been already noted, there is a real tendency of their application and in criminal legal proceedings. Permission of a criminal and legal dispute can be considered by two main criteria:

1) as constructive form of resolution of conflict of criminal and legal character in the way not of retaliatory approach;

2) as the certain indemnification by the victim considered further, at permission of criminal case, as the circumstance extenuating fault [4].

The criminal procedure legislation needs reforming which main objective is search of the most optimum, including compromise, the forms of achievement of the goals (appointment) of criminal legal proceedings established by the Code of Criminal Procedure. By application of mediation as alternative appointment procedure of punishment it would be possible to resolve numerous modern problems of criminal legal proceedings.

So, in order that mediation became the effective legal institute in criminal legal proceedings of Kazakhstan operating in all regions of the country, promoting improvement of quality of implementation of justice on criminal cases the integrated approach including development of model of mediation, her legislative regulation, stage-by-stage introduction in professional activity, training of highly qualified specialists (lawyers mediators) and also informing citizens on a possibility of application of the procedure of mediation at permission of the criminal and legal conflicts is necessary. The specified set of actions, in our opinion, will promote stage-by-stage introduction the mediation of technologies in legal reality of the Republic of Kazakhstan and to their successful application.

References:

1. Arutyunyan A.A. Mediation in the criminal process : abstract dis. ... cand. jurid. sciences. M., 2012.

2. Shirkin A.A. Mediation as a direction of development of the institution of reconciliation in the criminal procedure of the Russian Federation : abstract dis. ... cand. jurid. Sciences. Lyubertsy, 2015.

3. Рекомендация № R (99) 19: принята Комитетом министров Совета Европы 15 сентября 1999г.

4. Petrukhin I.L. The proposed amendments to the Criminal procedure Code of the Russian Federation / I.L. Petrukhin, L.M. Kariosova, M.G. Flyamer; edited by I.L. Petrukhin // Restorative justice. M., 2003.