Mediation in criminal proceedings: novelties of legislation and prospects for its improvement
Abstract
The article highlights the problematic issues of the use of mediation in criminal proceedings in Ukraine, as well as formulates proposals for their solution.
The leading trend in the development of modern legal systems is the use of alternative means of resolving criminal disputes, including mediation. Ukraine is guided in this direction by the international legal standards and the positive experience of many foreign countries. In the general sense, mediation contributes to the humanization of criminal policy against the offender, creates conditions for ensuring the rights, freedoms and legitimate interests of the victim and real compensation for the damage caused to them, accelerates the criminal process. The concept of mediation in criminal proceedings is given.
It is stated that the long path of Ukraine to the standardization of mediation was successful on November 16, 2021 in connection with the adoption of the Law of Ukraine “On Mediation” № 1875-IX. Instead, introducing the possibility of mediation in criminal proceedings, the legislator generally avoided amending the CPC of Ukraine, in particular to determine the status of mediator, establishing the boundaries of mediation of criminal conflicts, formulating the peculiarities of its conduct in criminal proceedings. As a reaction to the shortcomings of the legal regulations, it is proposed: first, to amend paragraph 25 of Part 1 of Art. 3 of the CPC of Ukraine, where a mediator should be identified among the participants in the criminal proceedings; secondly, to define in a separate article of the CPC of Ukraine the concept of mediator, their rights and obligations, in connection with which the author’s position on this issue is expressed.
The limits of mediation of criminal disputes at the legislative level are not set. It has been proved that the legal basis for mediation in criminal proceedings may be the provisions of the CPC of Ukraine on criminal proceedings under agreements, as well as the provisions of the Criminal Code of Ukraine on release from criminal liability in connection with reconciling the perpetrator with the victim.
In Ukraine, a pilot project on the use of restorative procedures in criminal proceedings against minors has been implemented since 2019. Positive examples of this project have shown that the mediation procedure has clear advantages over punitive justice.
Downloads
References
Arakelian, R. F. (2019). Introduction of the institute of mediation in the criminal procedural legislation of Ukraine [Candidate dissertation, University of the State Fiscal Service of Ukraine].
Basysta, I. V. (2013). Gaps in the current CPC on the regulation of criminal proceedings on the basis of agreements. Scientific Bulletin of Lviv State University of Internal Affairs, 4, 297-309.
Carnevali, R. (2019). Alternative Dispute Resolution in criminal matters in Chile. A proposal de lege ferenda. Ius et Praxis, 25(1). http://doi.org/10.4067/S0718-00122019000100415.
Cheurprakobkit, S., & Khruakham, S. (2021). The conflict resolution practice as a community justice alternative in Thailand. Contemporary Justice Review, 25(1). https://doi.org/10.1080/10282580.2021.1967150.
Fomina, T. H. (2021). International standards for mediation in criminal proceedings and the state of their implementation in Ukraine. Bulletin of Kharkiv National University of Internal Affairs, 2, 313-323. https://doi.org/10.32631/v.2021.2.28.
Frych, V., & Komarnytska, O. (2013). Mediation (reconciliation) as an alternative to criminal proceedings. Bulletin of the National Academy of the Prosecutor’s Office of Ukraine, 3, 24-26.
Guridi, J. F. (2019). Presente y futuro de la mediación penal en el ordenamiento español: cabe más incertidumbre? Revista Brasileira De Direito Processual Penal, 5(1), 33-72. https://doi.org/10.22197/rbdpp.v5i1.206.
Hloviuk, I. V. (2021, June 11). Some theoretical and applied issues of mediation in criminal proceedings [Conference presentation abstract]. Round table “Criminal Justice in Ukraine: Realities and Prospects”. Lviv, Ukraine.
Hlushchenko, O. A. (2015). The concept, essence and place of mediation in system of mechanisms of restorative justice. Law and Safety, 2(57), 50-55.
Horetskyi, O. (2020, April 22). Advantages of mediation in Ukraine. Legal Newspaper Online. https://yur-gazeta.com/dumka-eksperta/perevagi-mediaciyi-v-ukrayini-.html.
Hren, N. M. (2017). Realization of the human right to a fair trial through the procedure of adjudication mediation: theoretical and legal research [Candidate dissertation, Lviv Polytechnic National University].
Ismailova, R. Sh. (2020). Peculiarities of Establishing Mediation in Uzbekistan as an Out of-Court Dispute Resolution. Moscow Journal of International Law, 1, 123-132. https://doi.org/10.24833/0869-0049-2020-1-123-132.
Khesl, H. (2004). Mediation in conflict resolution: theory and technology. St. Petersburg.
Koman, R. N. (2016). Balancing the Force in Criminal Mediation. Beijing Law Review, 7(3). https://doi.org/10.4236/blr.2016.73018.
Konovalenko, I. (2021). Mediation in the modern world and prospects of its development in Ukraine. Lawyer & Law, 13. https://uz.ligazakon.ua/ua/magazine_article/EA014649.
Levko, B., & Chuiko, H. (2014). Mediation. Books-XXI.
Liubchenko, Ya. P. (2018). Alternative ways of resolving legal disputes: theoretical and legal aspect [Candidate dissertation, V. N. Karazin Kharkiv National University].
Mazaraki, N. A. (2019). Theoretical and legal bases of introduction of mediation in Ukraine [Doctoral dissertation, Institute of Legislation of The Verkhovna Rada of Ukraine].
Morshchakova, T. G. (2007). Can we change the social climate? Mediation and Law, 2(4), 14-15.
Mykytyn, Yu. I. (2013). The place of mediation in criminal proceedings and the criteria for its application in the context of the new CPC of Ukraine. Current Problems of Improving the Current Legislation of Ukraine, 32, 254-261.
Nahorniuk-Danyliuk, O. A. (2021). Mediation in criminal proceedings against minors in the criminal process of Ukraine [Ph.D. Thesis, National Academy of Internal Affairs].
Nestor, N. V. (2018). Introduction of mediation in the criminal process of Ukraine: problems of theory and practice. Alerta.
Podkovenko, T. (2017). Mediation: international legal standards. Actual Problems of Law, 4, 47-54.
Roskoshna, N. H. (2021). Mediation in the concept of restorative justice [Ph.D. Thesis, V. N. Karazin Kharkiv National University].
Sirotkina, M. V. (2021). Theory and practice of realization of the right to compromise in the criminal process of Ukraine [Doctoral dissertation, National Academy of Internal Affairs].
Tiurin, H. Ye. (2015). Organizational and legal bases of the prosecutor’s participation in criminal proceedings on the basis of agreements. Right.
Turman, N. (2016). Procedural status and role of mediators in concluding agreements in criminal proceedings. Entrepreneurship, Economy and Law, 4, 113-117.
Turman, N. (2017). Mediation in criminal proceedings: ways to improve current legislation. Entrepreneurship, Economy and Law, 3, 276-280.
Vilchyk, T. B. (2015). The role of a lawyer in the implementation of the mediation function in criminal proceedings. Law and Innovation, 4, 144-150.
Xiang, Y. (2013). Criminal Mediation in Mainland China: A Leap from Judicial Endeavor to Legal Norm. Asian Criminology, 8, 247-256. https://doi.org/10.1007/s11417-013-9161-7.
Yanovska, O., & Bitsai, A. (2014). Features of a lawyer’s participation in the mediation procedure. Bulletin of the Taras Shevchenko National University of Kyiv, 1, 21-24.
Zemlianska, V. V. (2008). Restorative justice in the criminal process of Ukraine. Kyiv.
Copyright (c) 2022 T. H. Fomina
This work is licensed under a Creative Commons Attribution 4.0 International License.
