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<xTITLE>Mediation in the Criminal Law</xTITLE>

Mediation in the Criminal Law

by Zeno Daniel Sustac
February 2008  Zeno  Daniel  Sustac

The Romanian lawgiver has applied mediation to the field of Criminal Law. Articles 67-70 in the Law 192/2006 comprise special provisions regarding mediation in the criminal cases, thus paying special attention to mediation in this field.

One can resort to mediation in the criminal prosecution phase or during the trial. Furthermore, this aspect can also be accomplished before a complaint has been filed or before the trial has begun, as the mediation law stipulates that one can always resort to this alternative means of conflict solving.

The legal provisions are especially applicable in criminal cases in regard to criminal offences, for which, according to the law, the withdrawal of the preliminary complaint or the reconciliation of the parties removes the criminal liability. Mediation is not ruled out even in the rest of the criminal cases, it being a means of solving several aspects arising in the criminal trial (the best example being the one in regard to solving the civil action within the criminal trial. This aspect can be accomplished in any type of criminal case through mediation).

The injured party, the perpetrator or any other participant in the criminal trial cannot be obligated to resort to mediation, this being a completely optional procedure. During mediation each party must be granted the right to legal assistance and in the cases in which this aspect is required, the right to using the services of an interpreter. Also, in the cases where minors are involved, the guarantees regarding those, stipulated within the criminal law, must be provided.

If the parties solve their conflict through mediation before the beginning of the criminal trial, the injured party can no longer inform the criminal prosecution authorities or the First Instance Court with regard to the respective criminal offence. In the situation in which mediation is initiated within the term when the preliminary complaint is filed, this term is suspended for the duration of the course of the mediation. If the conflicting parties reconcile, the implication of the criminal prosecution authorities or of the First Instance Court is no longer necessary. In the case in which the conflicting parties did not reconcile, the injured party may file the preliminary complaint within the legal term, a term which will be retaking its course from the date of the drawing up of the official report of closing the mediation procedure.

One can also resort to mediation after the beginning of the criminal prosecution or of the criminal trial. In these cases the criminal investigation is suspended from the date of presenting the mediation contract. The suspension can not exceed a period longer than 3 months from the date of the signing of the mediation contract. This suspension ends in the moment in which the mediation procedure closes by any of the means stipulated within the law even if the 3-months period has not been completed. The 3-months term is applicable for the cases in which mediation has not been finalized within the respective term.

The mediator has the obligation of issuing a copy of the official report of closing the mediation procedure to the judicial authority. If the official report establishes the fact that the parties have not reconciled, the criminal trial will be officially resumed. In the case in which no official report is issued the criminal trial is officially resumed after the lapse of the 3 months previously indicated.

Due to these concrete advantages, mediation in the criminal field will be a procedure used especially in the case of preliminary complaints but also in the rest of the criminal cases. In accomplishing these purposes, an important place is taken by the criminal prosecution authorities and the First Instance Court which can advise the parties in regard to resorting to mediation.

Biography


Zeno Daniel Sustac, PhD (born March 05, 1976)  is an arbitrator, attorney, insolvency  practitioner and mediator, Vice President of the Romanian Mediation Council, Co-President of the National Union of Mediators from Romania and Co-President of the National Union of Negotiators from Romania. He is an european expert in the field of cross-border mediation, a writter in ADR field and a mediation trainer (having performed more than 5000 hours of mediation training), examiner and program evaluator in mediation field.

Sustac wrote and co-wrote: "Independent Report Concerning Mediation and the Mediation Profession in Romania" (2007), "Alternative Dispute Resolution" (2008), "Mediation, standards and procedures" (2009) and "Mediation guide" (2009), “Negotiation Handbook” (2011), „Best practice guide on the use of mediation in cross-border cases” (2013) and „The philosophy of mediation” (2013).



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Website: www.sustac.ro

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