mediation in criminal cases – a comparison between germany ... · with regard to positive special...

Mediation in criminal cases – A comparison

between Germany and Turkey

10th November 2017

Universitat de València

I. Classical concept

II. Consideration of victim

III. Restorative justice as alternative

IV. Implementation at pre-trail stage

V. Critics and some closing remarks

I. Crime and prosecution from the

perspective of classical concept

1. Aim of criminal law and objectives of punishment

Protection of abstract legal interest/goods: harming or endangering their

invocation.

A conflict of values between offender and public order: bipolar and vertical.

Guilt punishment: retribution (compensation of guilt) and prevention.

a socio-psychological fact societal benefit

hardship (atonement: possible) deterrence/rehabilitation/

incapacitation

Main punishments: prison sentence and fine

Criminal law: behavior control directed against offender and others!

Victim: holder of the legal goods, nevertheless excluded as subject of mental

disruption caused by crime for the purpose of criminal law.

Victim's material and immaterial damages: a matter of civil claim against

offender, a horizontal conflict.

Fault compensation: restitution.

I. Crime and prosecution from the

perspective of classical concept

2. Principle of crime prosecution

As the crime is against public order, the public prosecutor acts in the name of

the people in accordance with principles of legality, objectivity and fairness and

justice.

Prosecutor + court: inquisitorial for the finding of truth. No proof obligation for

the defendant.

Focus of criminal law: the protection of defendant from the coercive measures

of criminal prosecution and strengthening his/her positions in criminal

proceedings

II. Some aliud mechanism of victim

consideration within the classical framework

1. Victim's consent

Subject of the legal goods!

Principle of self-determination

Right to dispose

2. Victim's procedural participation

At the pre-trail stage:

For some minor crimes, such as insult or physical harm: Private prosecution, if

the public interest is not required otherwise. An atonement-process is

precondition!

In some cases, right to appeal against dismissals by prosecution and to compel

to file charges.

At the trial stage:

In some cases, as a collateral prosecutor beside the public prosecutor as a

mean of pursuing personal satisfaction.

Demanding of civil compensation within the course of court trial: “adhesion”.

In general: accepting with reservations!


1. Starting points – initial objections against classical concept of criminal

justice

Drawbacks of incarceration: rehabilitation approaches and alternatives to

prison sentence.

Workload and economic reasons: simplification and acceleration of criminal

proceedings.

Extending the power of prosecutor: diversion mechanism.

International standardization: UN-Handbook of Basic Principles and Promising

Practices on Alternatives to Imprisonment

European Council: Resolution (76) 10 on certain alternative penal measures to

imprisonment (1976)


2. Classical diversion mechanisms

Plus: mediation

Germany (§§ 153a, 155a CPC; 46a CPenC)

Turkey (§§ 253 et seqq. CPC)


3. Emergence of victimology

Shortcomings of rehabilitation and deterrence through conventional

punishments: dissatisfaction and frustration with conventional criminal justice

system

Pro-victim arguments:

Not philosophical or theoretical foundation of criminal law, rather conditions

of human reality.

Not only criminal behavior and offender as criminal event, but also its

consequences and its victim as participants of a “crime relation” are of

importance.

Crime not only violates abstract values, but also individual rights: conflict

resolution needs the involvement of all parties.

Marginalization of victim: offender-centered criminal law. Not only the

reintegration of offender, but also that of victim is important.

Victim-offender relation is not like that of a debtor-creditor: public efforts in

favor of victim needed (protection of basis rights or idea of social state)

Criminal proceedings is unsuitable to consider mental impacts on victim, if

not deepens.


3. Emergence of victimology

Claims: complete or partial replacement of punishment with mediation!

Emphasizing the abstract values or norms overlooks victim and

consequences of crime

Denunciation of certain behavior is not achievable through destructive

inflicting of punishment, positive denunciation is possible during mediation

process.

With regard to positive general prevention: participation of community in

mediation is possible

With regard to positive special prevention: mediation makes it for offender

easier to assume responsibility and to transform and to reform him/her

(atonement).

Instead of punishment, building and promoting “social harmony through the

healing of victims, offenders and communities” is to be pursued.

Stigmatization of offender is inhibited. Meditation is a “non-adversarial, non-

threating environment”.

Pragmatic reasons: adaptable and as diversion possible.


4. International standardization

At the UN-level:

1985: The United Nations Declaration of Basic Principles of Justice for Victims

of Crime and Abuse of Power

1999: Handbook on Justice for Victims

2006: Handbook on Restorative Justice Programmes

At the level of European Council:

1985: Recommendation No. R (85) 11 concerning the position of the victim in

the framework of criminal law and procedure

1999: Recommendation No. R (99) 19 concerning mediation in penal matters


1. Restitution order

Result-oriented: payment or services for victim.

Applicability:

Germany: offences do not require a minimum mandatory punishment of one

year prison sentence or fine (misdemeanor)

Turkey: offences prosecutable upon a complaint by victim and require

maximum one year prison sentence

Conditions:

Germany: the degree of offender's guilt not severe and public interest satisfied

by restitution order

Turkey: no previous record of crime punished by prison sentence, favorable

prognosis and dismissal better for offender and public

Appealiablity by victim:

Germany: no

Turkey: yes


2. Mediation

A real alternative informal process, negotiation-oriented.

Applicability:

Germany: in theory all crimes, in practice centered around bodily injury,

criminal damage, insults, offences against personal freedom, property and

asset related crimes and also robbery

Turkey: limited crimes, crimes prosecutable upon a complaint by victim (e.g.

insult, bodily) harm, and some other listed crimes including threat, theft and

fraud of medium seriousness (no robbery or blackmailing)

Priority:

Germany: in competition with conditional or unconditional dismissal and penal

order.

Turkey: first mediation, than dismissal by restitution order, penal order not

applicable.

Obligation to lunch a mediation process:

Germany: weak-imperative

Turkey: strong-imperative


2. Mediation

Institutionalization:

Germany: under supervision of prosecutor, mainly carried out by court service

or special independent organization

Turkey: under supervision of mediation division of prosecution office, carried

out by lawyer or law-educated university graduates

Mediation process:

In both countries between the offender and victim of crime, no community

participation.

Content of process:

Germany: focusing on hearing the victim, satisfying his/her emotional needs

Turkey: focusing on restitution of damages

Procedural consequences:

Germany: dismissal of charge or trial (in case of misdemeanor) or mitigating

the sentence (in case of felony)

Turkey: dismissal of charge or trial and no tort claim is possible. Mediation

agreement is equal with enforceable court decision!


3. Restitution order and mediation in figures

Available statistics:

Germany: no information about the number of restitution order as condition of a

dismissal by prosecutor.

No nationwide information provided by criminal justice authorities. Estimation

based on number provided by some local mediation programmes.

Turkey: no numbers of dismissal with a restitution order.

Only numbers regarding dismissal on the ground of a succeeded mediation

agreement, at pre-trail or court trial stage (e.g. no information about kind of

offences mediated) .


28,5 %

3,5 %

27 %

10,9 %

8,6 %

21,5 %

DISMISSAL (UNCONDUTIONAL)

DISMISSAL (CONDUTIONAL

DISCHARGE (NO REASON FOR PROSECUTION)

PENAL ORDER

FILING A CHARGE

OTHERS

0 5 10 15 20 25 30

Decisions by prosecutor offices in 2015Total number of investigation proceedings: 4, 989, 559

https://www.destatis.de/DE/Publikationen/Thematisch/Rechtspflege/GerichtePersonal/Staatsanwaltschaften2100260157004.pdf?__blob=publicationFile

3. Restitution order and mediation in figures (Germany)



Numbers from mediation programmes: not all provide data and not all

mediation cases are covered!

For instance, there are approx. 450 mediation programmes in Germany and

2014 only 67 programmes attended the survey (15,3%). 2014 approx. 11.200

cases were dealt by mediation programmes and only 7.393 cases (66%) were

covered by mediation programmes which provided data.

85,6

8,1 2 20

20

40

60

80

100

Mediation-stage of proceedings 2014

pre-trail after filing charges court trail after court trial



54,6

14,6

10,6

1,4

31,3

0 10 20 30 40 50 60

Bodily harm

Offences against property and asset

Dameges to property

Robbery and blackmail

Others

Categories of mediated offences (2014)

Precentage


3. Restitution order and mediation in figures (Turkey)

Decision of discontinuation by prosecutor (Turkey)Year Fine Order Mediation Time-barred Other

reasons

Total

2009 9 474 1 422 174 321 1 805 749 1 990 986

2010 5 391 3 740 138 766 1 859 600 2 007 497

2011 1 937 3 719 47 048 1 911 543 1 964 247

2012 1 101 5 176 45 513 2 138 985 2 190 755

2013 895 8 414 127 388 2 398 701 2 535 398

2014 770 8 998 239 264 2 728 381 2 977 413

2015 1 167 8 485 223 449 2 999 300 3 232 401

2016 1 205 13 491 176 889 2 749 013 2 545 419

http://www.adlisicil.adalet.gov.tr/AdliIstPdf/2016.pdf

2016: only approx. 0,5% of cases are settled by mediation at pre-trail stage.


2016: only 13 491 cases are concluded by mediation at pre-trail stage




Since 2009: mediation bureau established with the prosecutor office.

2016: more than 40% of mediated cases came from Izmir.

2015: Decision of

Discontinuation (Local

differences )Provinces Mediation

Istanbul 156

Ankara 149

Izmir 3 833

Antalya 308

Bursa 1 459

Konya 41

Adana 15

Mersin 39

Kocaeli 38

Gaziantep 196

http://www.adlisicil.adalet.gov.tr/istatistik_2015/CUMHUR%C4%B0YET%20BA%C5%9ESAVCILIKLARI/17.pdf

2009 2010 2011 2012 2013 2014 2015 2016

Izmir 38 417 1611 3242 4947 3886 3833 5924


4. Reasons of low output

Regulatory:

Germany: penal order and unconditional dismissal are more attractive.

Turkey: limited amount of applicable offences

Legal Subculture:

In both countries: standard reservations against mediation, (less informed, little

experience, time-consuming, not fitting into “system”, not convinced from its

justness, felt need of punishment, mediation only for emotional satisfaction, not

a legal resolution of conflict)

Problems in carrying out:

Bureaucratic/organizational obstacles, lack of interest on the part of parties,

transmutation of mediation into “just another pre-trail step”.

V. Critics and some closing remarks

Unsolvable theoretical-system arguments: “Decentralization, privatization and

informal justice” versus “social control based on penal law”.

Dogmatic objections:

Moral responsibility of offender and moral condemnation and : lose on

importance. Distinction between punishment and reparation disappears!

Mediation is difficult to reconcile with conventional purposes of punishment.

Structural objections:

criminal justice administration: professional, selective, formulized and coercive

in conflict resolution, whereas mediation is a quite vague concept and not

wholly integrative (administrative efficiency)

Nature of mediation: “a mixture of criminal, civil, and non-legal elements”

Result:

Restorative justice within the conventional framework of criminal justice: not

wholly realizable (no substitution), but only partially (complementary).

Thank you for your attention

Dr Mehmet Arslan

Senior Researcher

Max-Planck-Institut für ausländisches

und internationales Strafrecht

Günterstalstr. 73

79100 Freiburg i.Br.

Tel.: +49 (761) 7081-311

Fax: +49 (761) 7081-294

[email protected]

mediation in criminal cases – a comparison between germany ... · with regard to positive special...

Documents