Academic journal article Contemporary Readings in Law and Social Justice

Mediation in the Field of Criminal Disputes at European Level

Academic journal article Contemporary Readings in Law and Social Justice

Mediation in the Field of Criminal Disputes at European Level

Article excerpt

1.General Considerations

The mediation of criminal disputes was defined in the criminal doctrine as a "means of communication, based on exchanges and adequate consideration of the other, in a dialogue used to reach, in relation to the existent institutions, a settlement identified by the parties themselves and estimated as satisfactory for both sides, and this in the presence of third parties" (Mateuţ, 2007: 149).

The 20th century was marked by the transition from the justice of a repressive kind to the restorative justice. This transition process occurs in the 21st century through the graduate passage from the disputes settlement by the Court to the disputes settlement using alternative methods of disputes settlement.

A comparative analysis of the traditional justice system and restorative justice highlights a series of specific particularities for each system taken into consideration. In the traditional justice (retributive and rehabilitating): the victims have a peripheral role within the process; the focus is on the punishment or treatment of the offender; the community is represented by the state; the parties are situated on adverse positions. During the criminal proceedings, the responsibility of offenders is minimized. These are focused on their person; they attempt to prove their innocence, to produce evidence that satisfy the instance to decide an easy sanction, the participants ignoring completely the victim. On the contrary, restorative justice gives prominence to the victim and manages to make more accountable the offender. In the restorative justice the victims play a central role during the process; the focus is on paying the damage produces between the offender and the victim and even between the offender and the extended community; the members and the community's organizations play an active role; the process is characterized by dialogue and negotiation between the parties.

In the case of restorative justice, the offence is no longer considered as a breach of laws, of state but as damage produced to the persons and to the community. If in the frame of the criminal system the victims are more often ignored, some authors are mentioning even a re-victimization of these persons; within the restorative justice the victims play a central role. The first objective of the restorative justice process is, as mentioned before, to repair the damage produced to the victim, to respond to their needs. Simultaneously, the victim has the possibility to express their opinion related to the offender's sanctioning. In turn, the offenders are treated in a more appropriate manner to their needs. The restorative justice focuses on the making accountable of the offenders and the compensation/ reparation that they can offer to their victims. At the same time, it is preoccupied by their social reintegration both from a human point of view, and as a concrete manner to avoid the repeated offences.

Consequently, the restorative justice functions based on principles under which the activities implemented in the case of offences oriented to:

- the creation of necessary conditions for the personal participation of those worst affected (especially the offender and the victim, but also their families and the community);

- the taking into consideration the social background in which the offence occurred;

- the orientation to the settlements of the issues preventively;

- the flexibility of practices (creativity).

In other words, the concept of restorative justice implies ?the accountability of the offender, the involvement of the victim and the community in the justice process, the compensation of damages produced to the victim and to the community and the re-establishment of the social order disturbed by the offence committed" (Fiscuci, 2012: 23).

The accountability of the offender implies to assume the whole responsibility by the offender for the offence committed, his understanding of the modality in which his behavior had damaged the victim and other persons, the understanding of the legal alternatives through which he might settle his issues which determined him to commit the offence. …

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