1. 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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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

32. Mediation in Criminal Matters
Paul WOUTERS - Bener Danışmanlık A.Ş.
Istanbul - Turkey

33. 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

34. 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

35. 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

36. 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

37. 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

38. 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

39. 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

40. 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

41. 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

42. 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

43. 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

44. 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

45. 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

46. 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

47. 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

48. 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

49. 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

50. 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

51. 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

52. 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

53. 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

54. 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

55. 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

56. 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

57. 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

58. 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

59. 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

60. 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

61. 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.
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62. 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

63. 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

64. 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

65. 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

66. 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

67. 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

68. 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

69. 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

70. 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

71. 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

72. 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

73. 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

74. 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

75. 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

76. 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

77. 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

78. 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

79. 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.
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80. Mediation in Criminal Matters
Paul WOUTERS - Bener Danışmanlık A.Ş.
Istanbul - Turkey

81. 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.
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82. 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

83. 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

84. 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

85. 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

86. 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

87. 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.
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88. 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.
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89. 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.
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90. 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.
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91. 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.
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92. 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.
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93. 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

94. 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

95. 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

96. 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