Mediation or Victim and Offender Reconciliation as One of the Discretional Prosecution Model
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Abstract
The paper examines the institute of settlement between a victim of a criminal act and a person suspected of committing the criminal act in criminal proceedings. The term “reconciliation“ is used in the Lithuanian law of criminal procedure, however, in the paper this institute has also been identified as mediation in criminal proceedings taking account of the terminology used by foreign researchers and legislators. By employing the system analysis, the comparative and the historical methods, the main aspects of mediation forms (types) established in the law of criminal procedure of certain countries are discussed. The main features of both ordinary and complex mediation are described from the comparative standpoint. The paper also attempts to identify a number of problematic regulatory and application issues related to reconciliation in public prosecution cases as provided for in the Lithuanian law of criminal procedure.
The author concludes that the regulation of alternative forms of settlement of criminal conflicts in the Lithuanian law of criminal procedure is substantially in line with the global trends of criminal proceedings‘ development. Mediation is a form of discretionary criminal prosecution that has been studied to the largest extent and is best known. Therefore, different modifications of mediation have been established and are relatively widely applied in the criminal procedure of many countries.
Although reconciliation between the suffered person and the suspect in public prosecution cases provided for in the Lithuanian law is conditionally comparable with the mediation models, however, the paper states that the absence of means of mediation represents the main difference between the reconciliation defined in the Code of Criminal Procedure and the Criminal Code of the Republic of Lithuania and the West European mediation models. Criminal procedure code does not provide any procedure for successful realisation of this institute. Reconciliation has more formal value in Lithuania because it narrows just to restitution of damage and confirmation of it in written form.
Having regard to the purpose of the reconciliation institute, which is widely analysed in the literature, as well as to Lithuania‘s international obligations, the author proposes improvements in the regulation of reconciliation in criminal proceedings.
It is proposed, in order to encourage wider application of the institute, that the regulation of the mediation procedure is more actively discussed in a separate regulation, at the same time improving the regulation of the procedural conditions for the recognition, assessment and use of the mediation results in the criminal procedure.
The author concludes that the regulation of alternative forms of settlement of criminal conflicts in the Lithuanian law of criminal procedure is substantially in line with the global trends of criminal proceedings‘ development. Mediation is a form of discretionary criminal prosecution that has been studied to the largest extent and is best known. Therefore, different modifications of mediation have been established and are relatively widely applied in the criminal procedure of many countries.
Although reconciliation between the suffered person and the suspect in public prosecution cases provided for in the Lithuanian law is conditionally comparable with the mediation models, however, the paper states that the absence of means of mediation represents the main difference between the reconciliation defined in the Code of Criminal Procedure and the Criminal Code of the Republic of Lithuania and the West European mediation models. Criminal procedure code does not provide any procedure for successful realisation of this institute. Reconciliation has more formal value in Lithuania because it narrows just to restitution of damage and confirmation of it in written form.
Having regard to the purpose of the reconciliation institute, which is widely analysed in the literature, as well as to Lithuania‘s international obligations, the author proposes improvements in the regulation of reconciliation in criminal proceedings.
It is proposed, in order to encourage wider application of the institute, that the regulation of the mediation procedure is more actively discussed in a separate regulation, at the same time improving the regulation of the procedural conditions for the recognition, assessment and use of the mediation results in the criminal procedure.
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Please see Copyright and Licence Agreement for further details.
