International Standards of Implementing Mediation within Criminal Proceedings and the State of Its Realization in Ukraine

Keywords: international standards, restorative justice, mediation, criminal proceedings, conciliation agreement.

Abstract

International standards for mediation in criminal proceedings have been defined; the process of development of the institution of mediation in criminal proceedings in Ukraine has been characterized; propositions on improving the procedure for mediation in criminal proceedings have been expressed.

It has been established that the introduction of mediation in criminal proceedings, as a necessary condition for the development of the national legal system, was reflected in many international legal instruments that Ukraine had undertaken to execute. The traditional system of criminal justice cannot offer an effective solution to the problem of dealing with persons who committed a criminal offense. It has been proved that the urgent need of our state is to create new effective alternatives to official criminal prosecution, in particular mediation.

The analysis of legislative activity on introducing mediation in Ukraine has been carried out. Representatives of the legislative initiative on the need to consolidate the possibility of conducting a mediation procedure at the legislative level by adopting the draft Law of Ukraine “On Mediation” dated from May 19, 2020 No. 3504 in the second reading.

It has been defined that mediation in Ukraine is not fully implemented, since there is no legal basis. At the same time, some measures have been implemented in Ukraine to introduce mediation in criminal proceedings. Thus, the Criminal Procedural Code of Ukraine provides the possibility of concluding a conciliation agreement between the victim and the suspect, the accused. At the same time, allowing the possibility of concluding a conciliation agreement, the criminal procedural legislation does not directly regulate the mediation procedure. It has been substantiated that the procedure for mediation during criminal proceedings should be regulated by: 1) adoption of the Law of Ukraine “On Mediation”; 2) making systemic amendments to the Criminal Procedural Code of Ukraine.

Particular attention has been paid to the fact that, despite the lack of a legal basis, our country has experience in applying the mediation procedure in criminal proceedings. Starting from 2019, two pilot projects have been implementing in Ukraine, which demonstrated positive results in this direction: “Restorative Program of Juveniles Suspected in Committing a Criminal Offense” and “Implementation of Restorative Justice in Ukraine”. The results of the implementation of these projects have proved that the mediation procedure has indisputable advantages over punitive justice.

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Author Biography

T. H. Fomina, Kharkiv National University of Internal Affairs

Doctor of Law, Associate Professor.
Department of Criminal Procedure and Pre-trial Investigation Organization (associate professor).

References

Tiurin H.Ye., 2015. Organizational and legal bases of the prosecutor’s participation in criminal proceedings on the basis of agreements [Orhanizatsiino-pravovi osnovy uchasti prokurora u kryminalnomu provadzhenni na pidstavi uhod]. Kharkiv: Pravo.

Frych V. and Komarnytska O., 2013. Mediation (reconciliation) as an alternative to criminal proceedings [Mediatsiia (prymyrennia) yak alternatyva sudovomu rozhliadu kryminalnykh provadzhen]. Vìsnik Nacìonalʹnoï akademìï prokuraturi Ukraïni – Journal of the National Prosecution Academy of Ukraine, No. 3, pp. 24-26.

Arakelian R.F., 2019. Introduction of the institute of mediation in the criminal procedural legislation of Ukraine [Vprovadzhennia instytutu mediatsii v kryminalne protsesualne zakonodavstvo Ukrainy]. Ph.D. dissertation. National University of the State Fiscal Service of Ukraine.

Nestor N.V., 2018. Introduction of mediation in the criminal process of Ukraine: problems of theory and practice [Zaprovadzhennia mediatsii v kryminalnomu protsesi Ukrainy: problemy teorii ta praktyky]. Kyiv: Alerta.

Published
2021-07-02
How to Cite
Fomina, T. H. (2021) “International Standards of Implementing Mediation within Criminal Proceedings and the State of Its Realization in Ukraine”, Bulletin of Kharkiv National University of Internal Affairs, 93(2), pp. 313-323. doi: 10.32631/v.2021.2.28.
Section
Criminal Procedure and Criminalistics; Forensic Examination; OSA