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Mediation In Criminal Matters [Compatibility Mode]

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    Mediation   In Criminal Matters [Compatibility Mode] Mediation In Criminal Matters [Compatibility Mode] Presentation Transcript

    • Mediation in criminal matters 1. Belgian “out of court settlement” procedures and application of the 2. European Council Framework Decision 15.03.2001 into “mediation in criminal matters” comments on 3. Council of Europe Recommendation No R(99) 19 on “mediation in penal matters” Ankara Bar Association – ADR Center Ankara - Turkey Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters This summary presentation only intends to introduce the audience to the broad guidelines of some aspects of what is called “mediation in criminal cases” and / or “out of court settlements” in criminal cases from a Belgian and / or European perspective. For the benefit of this summary presentation some free translations have been made, some generalisations have been introduced and some aspects have been overlooked in order to stay focussed on the mechanism of the “mediation” rather then on the technical-legal technical- issues. This presentation therefore is not a legal advice and does not intend to be complete. For details and further information on specific issues or implementation into different EU- EU- jurisdictions, consult your legal adviser. These areas of legislation are under constant evolution both on international and EU-level as EU- on national levels. It is advised to keep in touch and already prepare your services and administrations for upcomming changes on an ongoing and daily basis. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters In most countries, the Prosecutors’ Office is allowed to negotiate and enter into agreements for dismissal with offenders. In such negotiations sometimes the victim can be included, since restitution appears to be a logical part of the conditions to dismissal. These controlled talks, with fear of emprisonment for the accused lurking behind the corner, under supervision of the powerfull Prosecutor (or his services) usually are called “mediations”. Hereafter follow the Belgian options thereto, accompanied by the Belgian application of the European Council Framework Decision. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Compared to mediation in civil and commercial matters, these mediations are far more sensitive and require a high level of competence, taking into account (1) conflict resolution skills, (2) the specific requirements of working with victims and offenders, offenders, (3) basic knowledge of the criminal justice system and (4) good understanding of local cultures and communities. communities. Specific problems exist for non native victims / offenders that cannot be solved by simple translating services. The vulnerability of the parties after traumatic incidents has to be measured and balanced and when dealing with minors or with mentally or psychologically weaker persons, the active involvement in the process of mediation of parents, an ombudsman or lawyer, is often indispensable. indispensable. Depending on the nature of the crime, also the moment of intervention can be an important issue: already at police level or later at the criminal investigation. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters BELGIAN SITUATION PRIOR TO EUROPEAN INITIATIVE 1. (Amicable) Settlement (article 216 bis CPP) 2. Dismissal “subject to conditions” (article 216 ter CPP) EUROPEAN INITIATIVE 1. Belgian application: Mediation in criminal matters COUNCIL OF EUROPE 1. Comments on Mediation in penal matters Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters BELGIAN SITUATION PRIOR TO EUROPEAN INITIATIVE 1. (Amicable) Settlement (article 216 bis CPP) since one sided condition from the Prosecutors’ Office and no implication of the victim, not “mediation” but only “out of court settlement” When the Prosecutors’ Office presumes that the offence would lead to fine and/or an emprisonment of maximum 5 years and they envisage to only claim a financial fine at criminal court. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters In return for “dismissal” of the case, the Prosecutors’ Office offers the accused to pay: (1) an amount of money as a “fine” and (2) (whole or part of) the costs of analysis or expertise reports if any in the criminal investigation. It will also ask the accused to renounce claims on to proceeds of the criminal activities .... The accused has to formally take up his “civil liability” towards the victim (though he can contest the amounts involved) and has to proof having paid the non contested amounts thereof to the victim. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters The normal upper limit of the proposed fine normally is equal to the maximum fine placed upon the offence itself. The fine normally has to be paid within maximum 3 months. The right to propose the Amicable Settlement ends when the file is in the hands of court (or at Judge of Instruction). Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 2. Dismissal “subject to conditions” (article 216 ter CPP) (sometimes mistakenly called “mediation in criminal matters”, though the Council of State always objected to the use of this terminology) When the Prosecutors’ Office presumes that the offence would lead to an emprisonment of maximum 2 years / art. 80 Penal Code 15/20 years of forced labor (only biggest crimes excluded) Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Would the procedure fail, then he is bound by the re-qualification given to the offence during the re- procedures. The Prosecutors’ Office offers the possibility to accept “alternative measures” and - subject to fullfillment thereof - concedes to “dismissal” Cost of analysis or expertise related to the criminal investigation will have to be paid And the accused will be asked to renounce claims on to proceeds of the criminal activities .... Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters The suggested measures could be (combined or not): Treatment or therapy (for maximum 6 months) when the accused claims illness or addiction And possibly subject to Social Report / Inquiry • Community service – non paid – for government / ... Or specified types of NGO ... for jobs that normally are not remunerated (maximum 120 hours within 1-6 months) 1- in that service • Education (maximum 120 hours within 1-6 months) 1- Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters At the Prosecutors’ Office there is “mediation department - assistants” that will be activated by decision of the competent Prosecutor and that will contact the victim and the accused for restitution settlement The accused can be assisted and the victim can be assisted or represented by their lawyers (for advice on the restitution settlement) If an agreement is reached, this is officialized and signed during a “mediation hearing” at the Prosecutors’ Office and a qualified assistant will follow up good execution thereof Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters If the accused “confesses” during the proceedings, then mention thereof will be made in the report, but would the “mediation” fail and the case be brought to court, then this confession would only have the value of an “information” The judicial assistant however will report back to the Prosecutor any crime that he will be informed of The right for this initiative finishes when the file gets out of the hands of the Prosecutors’ Office: before criminal court or at Judge of Investigation Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters If the conditions are not met later on by the accused, the Prosecutors’ Office resumes full control over the file : Send to criminal court Propose (Amicable) Settlement Stay The victim could ask for (additional) damages, subject to the rules applicable to contracts (force majeure, justifiable error, swindle ...) Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Advantages : Fast settlement of claim for victim accused can - “face to face” with victim - give account for his actions accused is saved from “public trial” accused is saved of the negative social effects / consequences of emprisonment sentences (criminal record – visibility of emprisonment - ...) Less work at the Prosecutors’ Office Less work at the Criminal Courts Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Critics : The Prosecutors’ Office appears to take over the Judicial Powers legally reserved to the Magistrates (even “dismissal”) without the same garanties of impartiality, need for motivation of decisions and public awareness (invisible justice) Sometimes the proposed “alternative measure” really looks like a “punishment” • For instance: 120 hours of civil (unpaid) service Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Critics : There is no real choice for the accused: either accept the deal or risk emprisonment sentence and its’ negative social effects Neither the accused nor his lawyer have garantee to access of the criminal file – what can lead to “poker games” by the Prosecutors’ Office Voices are raised to lift this way of “mediation” out of article 16 ter CCP to article 3 ter Preliminary Title CCP (hereafter) Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters EUROPEAN INITIATIVE The number of people that are travelling and living in a country other then their own (and can be victim of a crime there) is steadily increasing. Travellers may need a broader range of assistance then locals (e.g. language, social and psychological support). Language and lack of information may present problems for victims, specially if they wish to lodge a complaint or obtain additional assistance. It also is difficult for victims to follow proceedings concerning them at a distance. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters EUROPEAN INITIATIVE A variety of solutions should be adopted, such as fast- fast-track procedures, acceptance of statements submitted in advance or from abroad, teleconferencing, legal costs refunded, access to legal aid, appropriate interpreting and communication facilities ... all this with the right of protection of their private life and safety. Swifter procedures for the restitution of stolen property. In certain cases the development of mediation systems could speed up the process and improve the handling of complaints. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters A number of those proposals have been laid down in the COUNCIL FRAMEWORK DECISION of 15 MARCH 2001 on the standing of victims in criminal proceedings (Official Journal L 82 of 22.03.2001) All this in order to mitigate the effects of crime and to try to avoid secondary victimisation. The provisions of the Framework however do not impose an obligation to ensure that victims will be treated in a manner equivalent to that of a party to proceedings. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters The item that will withhold the attention today is Article 10 - Penal mediation in the course of criminal proceedings Each Member State shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure. Each Member state shall ensure that any agreement between the victim and the accused reached in the course of such mediation in criminal cases can be taken into account. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Article 1 – Definitions (e) “mediation in criminal matters” shall be understood as the search, prior to or during criminal proceedings, for a negotiated solution between the victim and the author of the offence, mediated by a competent person. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters In Belgium this gave rise to the LAW of 22 JUNE 2005 with respect to the introduction of mediation in criminal matters to the Preliminary Title of the Code of Penal Procedures and the Penal Code. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters In the prior existing “mediation” (article 216ter CPP) between the Prosecutor and the accused, where the Prosecutor requests acceptance of certain condition(s) in exchange for “dismissal”, the victim was not active involved, except on involved, invitation thereto by the Prosecutor and for the supervised settlement of his claim only. This option still exists side by side to the new “mediation”. The new system (article 3 Preliminary Title CPP) exclusively deals with mediation in the relation between the victim and the accused. accused. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Article 3 Preliminary Title CPP ... Mediaton is a process that allows parties involved in a conflict, when they agree so on a voluntary basis, to participate actif and in full confidentiality at the solving of the problem that is the consequence of a criminal act, with the help of a neutral third party and according to a certain methodology. It has for objective to facilitate communication between the parties and to help the parties to reach an agreement themselves with respect to the rules and conditions that lead to restitution and pacification pacification. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Keywords : Voluntary Throughout criminal investigation, proceedings and even enforcement thereafter Confidential – as for the existence, the contents and result of the mediation itself – as for the contents of the agreement Between the parties with direct interests only Active participation of victim and accused, with the help of a neutral third party : the MEDIATOR According to fixed methodology Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Throughout the criminal proceedings, the Prosecutors, Judges ... will see to it that the parties concerned are informed about the possibility for mediation in criminal matters The request for mediation will be filed at a recognized mediation service – the mediator can contact the Prosecutor and ask for access file / information. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Victim and accused can be assisted by their lawyer But they cannot be represented by their laywer A direct confrontation “face to face” will be the desired consequence but often keeps restricted to “shuttle diplomacy” by the mediator Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters The decision to inform the Judge about the existence of the mediation (or not) or (part of) the contents thereof, is a mutual agreement between the parties. The mediation procedure will not affect (slow down or halt) the criminal proceedings in any way. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters When parties decide that elements of the agreement can be communicated to the criminal law Judge, such is confirmed in his later court decision. The Judge then may take the mediation (or elements thereof) into consideration and if so, will confirm this in his decision. The Judge therefore is not obliged to take the mediation (or its’ result) into consideration and it is as such not necessarily considered to be a “mitigating circumstance”. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters The mediators : Licenced at recognized mediation services only Professional secrecy Confidentiality for documents – not to be used as evidence (unless otherwise agreed) Not witness related to facts communicated during mediation Can inform the Prosecutors’ Office and can apply for access to criminal file According to specific “deontology” (code of conduct for mediators in criminal affairs) Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters COUNCIL OF EUROPE COMMITTEE OF MINISTERS Recommendation No. R (99) 19 of the Committee of Ministers to member States concerning mediation in penal matters (adopted by the Committee of Ministers on 15 September 1999) Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters -Recognising the legitimate interest of victims to have a stronger voice in dealing with the consequences of their victimisation, to communicate victimisation, with the offender and to obtain apology and reparation; reparation; - Considering the importance of encouraging the offenders’ sense of responsibility and offering them practical opportunities to make amends, which may further their reintegration and rehabilitation; - Recognising that mediation may increase awareness of the important role of the individual and the community in preventing and handling crime and resolving its associated conflicts, thus encouraging more constructive and less repressive criminal justice outcomes; outcomes; - Recognising that mediation requires specific skills and calls for codes of practice and accredited training; Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Mediation enables the victim to receive a personal apology and explanation from the offender and to express his or her feelings. This often helps to assuage anger and fear, and thus contribute to greater healing in the long term. Furthermore, in mediation the victim is able to negotiate reparation in a more comprehensive context to suit his or her needs. The victim may get a more realistic understanding of the offender and his or her behavior. Some victims may wish to respond to the offender’s willingness to accept responsibility by expressing forgiveness. From the offender perspective, the chance of facing the victim and being able to explain and make an apology is an important element in sensitizing the offender to the harm he/she has done and to the pain and suffering he/she has inflicted upon the victim. In addition, through mediation the offender is given the possibility of having direct involvement in resolving the conflict and agreeing reparation (such as financial compensation), which may help to re-establish relations with the community. Thus, the offender’s rehabilitation and re-integration into society are promoted by mediation. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters General Principles 1. Free consent of the parties and option to “opt 1.Free out” at any time 2. Confidentiality and no subsequent use, except 2.Confidentiality use, with the agreement of the parties. 3. Should be a generally available service. 3.S service. 4. Should be available at all stages of the criminal 4.Should justice process. process. 5. Should be given sufficient autonomy within the 5.Should criminal justice system. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters There should be guidelines defining the use of mediation in penal matters with respect to : 1. the conditions for the referral of cases to the mediation service A decision to refer a criminal case to mediation, as well as the assessment of the outcome of a mediation procedure, should be reserved to the criminal justice authorities. Obvious disparities with respect to factors such as the parties' age, maturity or intellectual capacity should be taken into consideration before a case is referred to mediation. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 1. the conditions for the referral of cases to the 1.the mediation service A decision to refer a criminal case to mediation should be accompanied by a reasonable time-limit within which the time- competent criminal justice authorities should be informed of the state of the mediation procedure. Discharges based on mediated agreements should have the same status as judicial decisions or judgments and should preclude prosecution in respect of the same facts (ne bis in idem). idem). When a case is referred back to the criminal justice authorities without an agreement between the parties or after failure to implement such an agreement, the decision as to how to proceed should be taken without delay. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 2. the handling of cases following mediation: mediation: The parties should have the right to legal assistance and, where necessary, to translation / interpretation. The parties should be fully informed of their rights, the nature of the mediation process and the possible consequences of their decision. The parties should be induced by un fair means to accept mediation. Special regulations and legal safeguards governing minors' participation in legal proceedings should also be applied to their participation in mediation in penal matters. Minors should, in addition, have the right to parental assistance. Mediation should not proceed if any of the main parties involved is not capable of understanding the meaning of the process. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 3. Standards of mediation Mediation services should be governed by recognised standards. standards. Mediation services should have sufficient autonomy in performing their duties. Standards of competence and ethical rules, as well as procedures for the selection, training and assessment of mediators should be developed. Mediation services should be monitored by a competent body. body. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 4. Qualifications and training of mediators Mediators should be recruited from all sections of society and should generally possess good understanding of local cultures and communities. Mediators should be able to demonstrate sound judgment and interpersonal skills necessary to mediation. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 4. Qualifications and training of mediators Mediators should receive initial training before taking up mediation duties as well as in-service in- training. Their training should aim at providing training. for a high level of competence, taking into account conflict resolution skills, the specific requirements of working with victims and offenders and basic knowledge of the criminal justice system. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 5. Handling of individual cases by the mediator The mediator should be responsible for providing a safe and comfortable environment for the mediation. The mediator should be sensitive to the vulnerability of the parties. Mediation should be carried out efficiently, but at a efficiently, pace that is manageable for the parties. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 5. Handling of individual cases by the mediator The mediator should be informed of all relevant facts of the case and be provided with the necessary documents by the competent criminal justice authorities. Mediation should be performed in an impartial manner, manner, based on the facts of the case and on the needs and wishes of the parties. The mediator should always respect the dignity of the parties and ensure that the parties act with respect towards each other. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 6. Confidentiality Participation in mediation should not be used as evidence of admission of guilt in subsequent legal proceedings. Mediation should be performed in camera. camera. Notwithstanding the principle of confidentiality, the mediator should convey any information about imminent serious crimes, which may crimes, come to light in the course of mediation, to the appropriate authorities or to the persons concerned. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 7. Outcome of mediation Agreements should be arrived at voluntarily by the parties. They should contain only reasonable and proportionate obligations. The mediator should report to the criminal justice authorities on the steps taken and on the outcome of the mediation. The mediator's report should not reveal the contents of mediation sessions, nor express any judgment on the parties' behaviour during mediation. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 8. Continuing development of mediation There should be regular consultation between criminal justice authorities and mediation services to develop common understanding. Member States should promote research on, and evaluation of, mediation in penal matters. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Bener Danışmanlık A.Ş. Yapı Kredi Plaza C Blok Kat:1 34330 Levent – Istanbul Paul Wouters Tel : + 90 (212) 325 02 32 / ext 127 Fax : + 90 (212) 325 10 66 Cell : + 90 (535) 656 23 24 E-mail: paul.wouters@bener.com.tr Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in criminal matters 1. Belgian “out of court settlement” procedures and application of the 2. European Council Framework Decision 15.03.2001 into “mediation in criminal matters” comments on 3. Council of Europe Recommendation No R(99) 19 on “mediation in penal matters” Ankara Bar Association – ADR Center Ankara - Turkey Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters This summary presentation only intends to introduce the audience to the broad guidelines of some aspects of what is called “mediation in criminal cases” and / or “out of court settlements” in criminal cases from a Belgian and / or European perspective. For the benefit of this summary presentation some free translations have been made, some generalisations have been introduced and some aspects have been overlooked in order to stay focussed on the mechanism of the “mediation” rather then on the technical-legal technical- issues. This presentation therefore is not a legal advice and does not intend to be complete. For details and further information on specific issues or implementation into different EU- EU- jurisdictions, consult your legal adviser. These areas of legislation are under constant evolution both on international and EU-level as EU- on national levels. It is advised to keep in touch and already prepare your services and administrations for upcomming changes on an ongoing and daily basis. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters In most countries, the Prosecutors’ Office is allowed to negotiate and enter into agreements for dismissal with offenders. In such negotiations sometimes the victim can be included, since restitution appears to be a logical part of the conditions to dismissal. These controlled talks, with fear of emprisonment for the accused lurking behind the corner, under supervision of the powerfull Prosecutor (or his services) usually are called “mediations”. Hereafter follow the Belgian options thereto, accompanied by the Belgian application of the European Council Framework Decision. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Compared to mediation in civil and commercial matters, these mediations are far more sensitive and require a high level of competence, taking into account (1) conflict resolution skills, (2) the specific requirements of working with victims and offenders, offenders, (3) basic knowledge of the criminal justice system and (4) good understanding of local cultures and communities. communities. Specific problems exist for non native victims / offenders that cannot be solved by simple translating services. The vulnerability of the parties after traumatic incidents has to be measured and balanced and when dealing with minors or with mentally or psychologically weaker persons, the active involvement in the process of mediation of parents, an ombudsman or lawyer, is often indispensable. indispensable. Depending on the nature of the crime, also the moment of intervention can be an important issue: already at police level or later at the criminal investigation. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters BELGIAN SITUATION PRIOR TO EUROPEAN INITIATIVE 1. (Amicable) Settlement (article 216 bis CPP) 2. Dismissal “subject to conditions” (article 216 ter CPP) EUROPEAN INITIATIVE 1. Belgian application: Mediation in criminal matters COUNCIL OF EUROPE 1. Comments on Mediation in penal matters Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters BELGIAN SITUATION PRIOR TO EUROPEAN INITIATIVE 1. (Amicable) Settlement (article 216 bis CPP) since one sided condition from the Prosecutors’ Office and no implication of the victim, not “mediation” but only “out of court settlement” When the Prosecutors’ Office presumes that the offence would lead to fine and/or an emprisonment of maximum 5 years and they envisage to only claim a financial fine at criminal court. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters In return for “dismissal” of the case, the Prosecutors’ Office offers the accused to pay: (1) an amount of money as a “fine” and (2) (whole or part of) the costs of analysis or expertise reports if any in the criminal investigation. It will also ask the accused to renounce claims on to proceeds of the criminal activities .... The accused has to formally take up his “civil liability” towards the victim (though he can contest the amounts involved) and has to proof having paid the non contested amounts thereof to the victim. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters The normal upper limit of the proposed fine normally is equal to the maximum fine placed upon the offence itself. The fine normally has to be paid within maximum 3 months. The right to propose the Amicable Settlement ends when the file is in the hands of court (or at Judge of Instruction). Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 2. Dismissal “subject to conditions” (article 216 ter CPP) (sometimes mistakenly called “mediation in criminal matters”, though the Council of State always objected to the use of this terminology) When the Prosecutors’ Office presumes that the offence would lead to an emprisonment of maximum 2 years / art. 80 Penal Code 15/20 years of forced labor (only biggest crimes excluded) Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Would the procedure fail, then he is bound by the re-qualification given to the offence during the re- procedures. The Prosecutors’ Office offers the possibility to accept “alternative measures” and - subject to fullfillment thereof - concedes to “dismissal” Cost of analysis or expertise related to the criminal investigation will have to be paid And the accused will be asked to renounce claims on to proceeds of the criminal activities .... Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters The suggested measures could be (combined or not): Treatment or therapy (for maximum 6 months) when the accused claims illness or addiction And possibly subject to Social Report / Inquiry • Community service – non paid – for government / ... Or specified types of NGO ... for jobs that normally are not remunerated (maximum 120 hours within 1-6 months) 1- in that service • Education (maximum 120 hours within 1-6 months) 1- Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters At the Prosecutors’ Office there is “mediation department - assistants” that will be activated by decision of the competent Prosecutor and that will contact the victim and the accused for restitution settlement The accused can be assisted and the victim can be assisted or represented by their lawyers (for advice on the restitution settlement) If an agreement is reached, this is officialized and signed during a “mediation hearing” at the Prosecutors’ Office and a qualified assistant will follow up good execution thereof Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters If the accused “confesses” during the proceedings, then mention thereof will be made in the report, but would the “mediation” fail and the case be brought to court, then this confession would only have the value of an “information” The judicial assistant however will report back to the Prosecutor any crime that he will be informed of The right for this initiative finishes when the file gets out of the hands of the Prosecutors’ Office: before criminal court or at Judge of Investigation Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters If the conditions are not met later on by the accused, the Prosecutors’ Office resumes full control over the file : Send to criminal court Propose (Amicable) Settlement Stay The victim could ask for (additional) damages, subject to the rules applicable to contracts (force majeure, justifiable error, swindle ...) Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Advantages : Fast settlement of claim for victim accused can - “face to face” with victim - give account for his actions accused is saved from “public trial” accused is saved of the negative social effects / consequences of emprisonment sentences (criminal record – visibility of emprisonment - ...) Less work at the Prosecutors’ Office Less work at the Criminal Courts Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Critics : The Prosecutors’ Office appears to take over the Judicial Powers legally reserved to the Magistrates (even “dismissal”) without the same garanties of impartiality, need for motivation of decisions and public awareness (invisible justice) Sometimes the proposed “alternative measure” really looks like a “punishment” • For instance: 120 hours of civil (unpaid) service Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Critics : There is no real choice for the accused: either accept the deal or risk emprisonment sentence and its’ negative social effects Neither the accused nor his lawyer have garantee to access of the criminal file – what can lead to “poker games” by the Prosecutors’ Office Voices are raised to lift this way of “mediation” out of article 16 ter CCP to article 3 ter Preliminary Title CCP (hereafter) Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters EUROPEAN INITIATIVE The number of people that are travelling and living in a country other then their own (and can be victim of a crime there) is steadily increasing. Travellers may need a broader range of assistance then locals (e.g. language, social and psychological support). Language and lack of information may present problems for victims, specially if they wish to lodge a complaint or obtain additional assistance. It also is difficult for victims to follow proceedings concerning them at a distance. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters EUROPEAN INITIATIVE A variety of solutions should be adopted, such as fast- fast-track procedures, acceptance of statements submitted in advance or from abroad, teleconferencing, legal costs refunded, access to legal aid, appropriate interpreting and communication facilities ... all this with the right of protection of their private life and safety. Swifter procedures for the restitution of stolen property. In certain cases the development of mediation systems could speed up the process and improve the handling of complaints. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters A number of those proposals have been laid down in the COUNCIL FRAMEWORK DECISION of 15 MARCH 2001 on the standing of victims in criminal proceedings (Official Journal L 82 of 22.03.2001) All this in order to mitigate the effects of crime and to try to avoid secondary victimisation. The provisions of the Framework however do not impose an obligation to ensure that victims will be treated in a manner equivalent to that of a party to proceedings. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters The item that will withhold the attention today is Article 10 - Penal mediation in the course of criminal proceedings Each Member State shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure. Each Member state shall ensure that any agreement between the victim and the accused reached in the course of such mediation in criminal cases can be taken into account. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Article 1 – Definitions (e) “mediation in criminal matters” shall be understood as the search, prior to or during criminal proceedings, for a negotiated solution between the victim and the author of the offence, mediated by a competent person. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters In Belgium this gave rise to the LAW of 22 JUNE 2005 with respect to the introduction of mediation in criminal matters to the Preliminary Title of the Code of Penal Procedures and the Penal Code. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters In the prior existing “mediation” (article 216ter CPP) between the Prosecutor and the accused, where the Prosecutor requests acceptance of certain condition(s) in exchange for “dismissal”, the victim was not active involved, except on involved, invitation thereto by the Prosecutor and for the supervised settlement of his claim only. This option still exists side by side to the new “mediation”. The new system (article 3 Preliminary Title CPP) exclusively deals with mediation in the relation between the victim and the accused. accused. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Article 3 Preliminary Title CPP ... Mediaton is a process that allows parties involved in a conflict, when they agree so on a voluntary basis, to participate actif and in full confidentiality at the solving of the problem that is the consequence of a criminal act, with the help of a neutral third party and according to a certain methodology. It has for objective to facilitate communication between the parties and to help the parties to reach an agreement themselves with respect to the rules and conditions that lead to restitution and pacification pacification. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Keywords : Voluntary Throughout criminal investigation, proceedings and even enforcement thereafter Confidential – as for the existence, the contents and result of the mediation itself – as for the contents of the agreement Between the parties with direct interests only Active participation of victim and accused, with the help of a neutral third party : the MEDIATOR According to fixed methodology Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Throughout the criminal proceedings, the Prosecutors, Judges ... will see to it that the parties concerned are informed about the possibility for mediation in criminal matters The request for mediation will be filed at a recognized mediation service – the mediator can contact the Prosecutor and ask for access file / information. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Victim and accused can be assisted by their lawyer But they cannot be represented by their laywer A direct confrontation “face to face” will be the desired consequence but often keeps restricted to “shuttle diplomacy” by the mediator Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters The decision to inform the Judge about the existence of the mediation (or not) or (part of) the contents thereof, is a mutual agreement between the parties. The mediation procedure will not affect (slow down or halt) the criminal proceedings in any way. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters When parties decide that elements of the agreement can be communicated to the criminal law Judge, such is confirmed in his later court decision. The Judge then may take the mediation (or elements thereof) into consideration and if so, will confirm this in his decision. The Judge therefore is not obliged to take the mediation (or its’ result) into consideration and it is as such not necessarily considered to be a “mitigating circumstance”. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters The mediators : Licenced at recognized mediation services only Professional secrecy Confidentiality for documents – not to be used as evidence (unless otherwise agreed) Not witness related to facts communicated during mediation Can inform the Prosecutors’ Office and can apply for access to criminal file According to specific “deontology” (code of conduct for mediators in criminal affairs) Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters COUNCIL OF EUROPE COMMITTEE OF MINISTERS Recommendation No. R (99) 19 of the Committee of Ministers to member States concerning mediation in penal matters (adopted by the Committee of Ministers on 15 September 1999) Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters -Recognising the legitimate interest of victims to have a stronger voice in dealing with the consequences of their victimisation, to communicate victimisation, with the offender and to obtain apology and reparation; reparation; - Considering the importance of encouraging the offenders’ sense of responsibility and offering them practical opportunities to make amends, which may further their reintegration and rehabilitation; - Recognising that mediation may increase awareness of the important role of the individual and the community in preventing and handling crime and resolving its associated conflicts, thus encouraging more constructive and less repressive criminal justice outcomes; outcomes; - Recognising that mediation requires specific skills and calls for codes of practice and accredited training; Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Mediation enables the victim to receive a personal apology and explanation from the offender and to express his or her feelings. This often helps to assuage anger and fear, and thus contribute to greater healing in the long term. Furthermore, in mediation the victim is able to negotiate reparation in a more comprehensive context to suit his or her needs. The victim may get a more realistic understanding of the offender and his or her behavior. Some victims may wish to respond to the offender’s willingness to accept responsibility by expressing forgiveness. From the offender perspective, the chance of facing the victim and being able to explain and make an apology is an important element in sensitizing the offender to the harm he/she has done and to the pain and suffering he/she has inflicted upon the victim. In addition, through mediation the offender is given the possibility of having direct involvement in resolving the conflict and agreeing reparation (such as financial compensation), which may help to re-establish relations with the community. Thus, the offender’s rehabilitation and re-integration into society are promoted by mediation. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters General Principles 1. Free consent of the parties and option to “opt 1.Free out” at any time 2. Confidentiality and no subsequent use, except 2.Confidentiality use, with the agreement of the parties. 3. Should be a generally available service. 3.S service. 4. Should be available at all stages of the criminal 4.Should justice process. process. 5. Should be given sufficient autonomy within the 5.Should criminal justice system. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters There should be guidelines defining the use of mediation in penal matters with respect to : 1. the conditions for the referral of cases to the mediation service A decision to refer a criminal case to mediation, as well as the assessment of the outcome of a mediation procedure, should be reserved to the criminal justice authorities. Obvious disparities with respect to factors such as the parties' age, maturity or intellectual capacity should be taken into consideration before a case is referred to mediation. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 1. the conditions for the referral of cases to the 1.the mediation service A decision to refer a criminal case to mediation should be accompanied by a reasonable time-limit within which the time- competent criminal justice authorities should be informed of the state of the mediation procedure. Discharges based on mediated agreements should have the same status as judicial decisions or judgments and should preclude prosecution in respect of the same facts (ne bis in idem). idem). When a case is referred back to the criminal justice authorities without an agreement between the parties or after failure to implement such an agreement, the decision as to how to proceed should be taken without delay. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 2. the handling of cases following mediation: mediation: The parties should have the right to legal assistance and, where necessary, to translation / interpretation. The parties should be fully informed of their rights, the nature of the mediation process and the possible consequences of their decision. The parties should be induced by un fair means to accept mediation. Special regulations and legal safeguards governing minors' participation in legal proceedings should also be applied to their participation in mediation in penal matters. Minors should, in addition, have the right to parental assistance. Mediation should not proceed if any of the main parties involved is not capable of understanding the meaning of the process. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 3. Standards of mediation Mediation services should be governed by recognised standards. standards. Mediation services should have sufficient autonomy in performing their duties. Standards of competence and ethical rules, as well as procedures for the selection, training and assessment of mediators should be developed. Mediation services should be monitored by a competent body. body. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 4. Qualifications and training of mediators Mediators should be recruited from all sections of society and should generally possess good understanding of local cultures and communities. Mediators should be able to demonstrate sound judgment and interpersonal skills necessary to mediation. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 4. Qualifications and training of mediators Mediators should receive initial training before taking up mediation duties as well as in-service in- training. Their training should aim at providing training. for a high level of competence, taking into account conflict resolution skills, the specific requirements of working with victims and offenders and basic knowledge of the criminal justice system. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 5. Handling of individual cases by the mediator The mediator should be responsible for providing a safe and comfortable environment for the mediation. The mediator should be sensitive to the vulnerability of the parties. Mediation should be carried out efficiently, but at a efficiently, pace that is manageable for the parties. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 5. Handling of individual cases by the mediator The mediator should be informed of all relevant facts of the case and be provided with the necessary documents by the competent criminal justice authorities. Mediation should be performed in an impartial manner, manner, based on the facts of the case and on the needs and wishes of the parties. The mediator should always respect the dignity of the parties and ensure that the parties act with respect towards each other. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 6. Confidentiality Participation in mediation should not be used as evidence of admission of guilt in subsequent legal proceedings. Mediation should be performed in camera. camera. Notwithstanding the principle of confidentiality, the mediator should convey any information about imminent serious crimes, which may crimes, come to light in the course of mediation, to the appropriate authorities or to the persons concerned. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 7. Outcome of mediation Agreements should be arrived at voluntarily by the parties. They should contain only reasonable and proportionate obligations. The mediator should report to the criminal justice authorities on the steps taken and on the outcome of the mediation. The mediator's report should not reveal the contents of mediation sessions, nor express any judgment on the parties' behaviour during mediation. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters 8. Continuing development of mediation There should be regular consultation between criminal justice authorities and mediation services to develop common understanding. Member States should promote research on, and evaluation of, mediation in penal matters. Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey
    • Mediation in Criminal Matters Bener Danışmanlık A.Ş. Yapı Kredi Plaza C Blok Kat:1 34330 Levent – Istanbul Paul Wouters Tel : + 90 (212) 325 02 32 / ext 127 Fax : + 90 (212) 325 10 66 Cell : + 90 (535) 656 23 24 E-mail: paul.wouters@bener.com.tr Paul WOUTERS - Bener Danışmanlık A.Ş. Istanbul - Turkey