Mediation in Criminal Procedure

1. Introduction: What is mediation and why is it important?

In criminal proceedings, mediation, in addition to the punitive approach centered on the classical "crime-punishment" dichotomy, is a restorative justice institution that aims to compensate the victim , reintegrate the perpetrator into society , and establish peace between the parties

The aim of conciliation, as regulated in the Code of Criminal Procedure (CMK), is:

• The victim should be satisfied quickly and effectively.

• The perpetrator a passive individual who is solely subjected to punishment to taking responsibility.

• Relaxing the state's power to punish in non-essential situations ,

• The goal is to reduce the workload of the criminal justice system.

Today, in criminal proceedings, mediation has become a mechanism that comes into play at the direction of the public prosecutor during the investigation phase and at the direction of the court during the prosecution phase; depending on the outcome, a decision of no grounds for prosecution, postponement of the opening of a public case , or dismissal of the case .

This article "Mediation in Criminal Proceedings" ;

• The legal basis,

• Scope and crimes subject to mediation,

• The stages of the mediation process,

• The results of mediation,

• Strategic importance for lawyers and parties

It will be discussed in detail using practical and understandable language.

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2. The Legal Basis of Mediation

2.1. Mediation Regulations in the Code of Criminal Procedure

The fundamental legal basis for mediation in criminal proceedings is Articles 253, 254, and 255 of the Code of Criminal Procedure No. 5271.

These articles contain:

• Which crimes are subject to mediation?

• Whether mediation is mandatory ,

• How the mediation process will be conducted,

• What will happen to the case if a settlement is reached or not ?

• The effect of mediation on a legal case

It has been determined in detail.

In addition, the Regulation on Mediation in Criminal Procedure regulates the structure of mediation offices, the selection, training, assignment, and remuneration of mediators, and the procedures to be followed in the mediation process.

2.2. Restorative Justice and Reconciliation

Mediation is not simply a "pay for the damages, close the case" mechanism. Its theoretical foundation lies in:

• Restorative justice,

• Victim-centeredness,

• Strengthening social peace,

• The perpetrator takes responsibility and demonstrates remorse

These principles are included.

Therefore, mediation;

• Not limited to just monetary payments,

• Apology,

• Social responsibility activity for a specific period,

• Meeting the specific needs of the victim,

• Making a donation to an organization

It can include various actions such as these.

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3. Basic Principles of Mediation

In criminal proceedings, mediation is conducted within a specific framework of principles. Violation of these principles can create serious problems regarding the validity and ethical aspects of the mediation.

3.1. Volunteering

The most fundamental principle of mediation is voluntariness.

• There should be no coercion, pressure, threat, or promise whatsoever on the victim or the suspect/defendant .

• Statements like, "If you don't accept the settlement, you will be penalized," are neither legally nor ethically acceptable.

• The parties should make their decision freely after understanding the nature, consequences, and alternatives of mediation .

3.2. Impartiality and Independence

The mediator conducting the mediation process must be impartial and independent.

• There must be no family, business, or conflict of interest relationship between the parties.

• He/she cannot act as an agent for either party; he/she only ensures the smooth progress of the process.

• One must avoid unilateral approaches, suggestions, and manipulation.

3.3. Privacy

Mediation talks are confidential.

• Statements made during the meetings,

• The proposed actions,

• Negotiation content,

• The parties' approaches to different possibilities

It cannot be used as evidence in a future criminal case .

This principle increases the likelihood of reaching a compromise by enabling the parties to communicate more openly and honestly.

3.4. Protection of the Victim

Mediation the consent and protection of the victim.

• The victim's rights and options should be clearly explained

• The victim should be able to make informed decisions regarding compensation for their material and moral damages.

• The way interviews are conducted, especially with vulnerable groups (children, people with disabilities, victims of domestic violence, etc.), requires extreme care.

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4. Crimes Subject to Mediation and Their Scope

4.1. Crimes Subject to Complaint

As a general rule, a significant portion of offenses that are subject to complaint are within the scope of mediation

For example:

• Simple assault (certain cases),

• Insult,

• Threats (mild forms),

• Damage to property,

• Certain types of theft (especially in cases involving minor and unspecified damage)

It is subject to mediation.

However, the scope of mediation is not limited solely to the "complaint-based" criterion; the law also explicitly includes certain offenses prosecuted ex officio within the scope of mediation

4.2. Crimes Explicitly Subject to Mediation in the Law

The Code of Criminal Procedure and related legislation provide for mediation in certain crimes, regardless of whether the crime is subject to complaint or not .

The key factors here are the nature of the crime, the victim-offender relationship, and whether reconciliation will be functional in terms of restorative justice.

4.3. Crimes Excluded from Mediation

Some crimes are outside. In particular:

• Crimes against sexual inviolability,

• Drug manufacturing and trafficking,

• Organized crimes,

• Crimes that have a serious impact on public safety and public health

No reconciliation is foreseen in areas such as these.

Here, the legislator has preferred that punitive and deterrent mechanisms take precedence over conciliation in cases of serious violations of public order, public safety, and fundamental rights

4.4. Mediation in the Context of Children

For child defendants, mediation a special significance :

• Preventing the child from re-offending,

• To prevent him/her from having too much contact with the criminal justice system,

• Prioritizing an educational and restorative approach

In this respect, mediation is one of the important tools of the child justice system.

In mediation cases involving child defendants, child-friendly procedures, pedagogical approaches, and expert support should be employed.

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5. How Does the Mediation Process Work?

Although the steps in the mediation process differ depending on the investigation and prosecution phases, the general framework is similar.

5.1. Mediation During the Investigation Phase

1. Initiation of Investigation:
   Upon receiving a crime report or complaint, the public prosecutor's office initiates an investigation.

2. Scope Review:
   The prosecutor assesses whether the alleged crime is subject to mediation.

   • If mediation is not possible, the process proceeds like a classic criminal investigation.

   • If mediation is possible, the case is sent to the mediation office.

3. Appointment of a Mediator: The mediation office appoints a mediator from among registered and trained individuals .
   

4. Informing the Parties:
   The mediator informs both the victim and the suspect about the mediation process;

   • What happened,

   • What the consequences will be,

   • How the penalty process will proceed if they do not accept it

They provide information on the matter and convey a compromise offer.

5. Acceptance / Rejection:

   • one of the parties definitively refuses, the mediation process ends and the case is returned to the prosecutor.

   • both sides agree to try to reach a compromise, the negotiation process will begin.

6. Conducting Negotiations:
   Negotiations;

   • In the same room,

   • Separately,

   • By telephone or other suitable means of communication

It is possible. The mediator tries to understand the parties' interests and help them find common ground.

7. Determining the Agreed Obligation:
   The agreed-upon obligation between the parties is put in writing. For example:

   • A specific amount of money payment,

   • Repair of damaged property or purchase of a new one,

   • A donation to an organization in the victim's name,

   • A specific period of education or social responsibility activity,

   • A clear apology.

   The mediation agreement when and how the obligation will be fulfilled .

8. Mediation Report and Prosecutor's Decision:
   The mediator submits a report to the public prosecutor, detailing whether mediation was achieved and the terms of the agreement.

   • If the act was performed immediately , the prosecutor usually decides that there is no basis for prosecution

   • If the obligation is tied to a specific time period, the prosecutor postpone the initiation of public prosecution ; if the obligation is fulfilled within the specified time, the process is dropped.

5.2. Mediation During the Prosecution Phase

Even if mediation was not applied or could not be achieved during the investigation phase, in some cases mediation may still be considered during the prosecution phase

1. If the court determines that the offense is subject to mediation, it sends the case to the mediation office.

2. The process works similarly to the investigation phase.

3. If a settlement is reached, the court will:

   • The case is dismissed,

   • If the performance is subject to a time limit, the announcement of the verdict may be postponed or the case may be suspended.

can decide.

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6. Outcomes of Mediation

Reaching a mediation stage has significant consequences for both the criminal case and the compensation process.

6.1. From the Perspective of Criminal Procedure

The impact of mediation on criminal proceedings varies depending on the stage of the case and whether the obligation has been fulfilled

• If a settlement is reached in the investigation and the obligation is fulfilled immediately:
  Generally, a decision of no grounds for prosecution is issued. No public lawsuit is filed against the defendant.

• If the obligation is time-bound: The prosecutor may postpone the initiation of public prosecution on the condition that the obligation is fulfilled within a specific period . If the obligation is fulfilled by the end of the period, no further prosecution will be initiated.
  

• Settlement in prosecution: Based on the settlement report, the court may decide to dismiss the case or, if the performance obligation is time-bound, to suspend the case
  

When a settlement is reached, a public prosecution cannot be initiated again for the same offense . This provides a significant safeguard for the defendant and demonstrates that the victim has closed the dispute permanently.

6.2. Regarding Legal Cases and Compensation

of mediation on compensation claimsis a frequently misunderstood issue:

• If the victim acknowledges in the mediation agreement that the damages have been fully compensated , it may, as a rule, not be possible to file a separate compensation claim for the same item of damage;

• However, settlement agreements often do not technically express the items and amounts of damages precisely. In this case;

  • The settlement covers only a certain portion of the damage,

  • There is also the possibility of claiming compensation for certain items of material or moral damage

Comments may come to the fore.

Therefore, it is particularly important for the victim's representative to carefully draft the settlement agreement, taking into account the consequences of compensation law.

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7. The Role, Rights, and Responsibilities of the Mediator

7.1. Who is a mediator?

A mediator is a lawyer (usually an attorney) registered with the Ministry of Justice, who has received specific training and acts as an impartial third party managing the process

Main tasks:

• To inform the parties,

• Organizing meetings,

• To maintain balance,

• To make the act of compromise concrete and implementable,

• The process involves compiling a report and submitting it to the prosecutor's office or the court.

7.2. Impartiality and Professional Diligence

Mediator:

• One cannot take a position, openly or secretly, in favor of or against one of the parties .

• He is obligated to keep confidential the secrets revealed to him

• Information obtained during mediation talks cannot be used for other purposes

• The report should reflect the process accurately, impartially, and completely .

7.3. Fees and Expenses

The mediator's fee is determined according to a tariff and is, as a rule, covered by the State.

This largely eliminates the parties' hesitation about whether there will be extra costs if they agree to mediation. The parties only bear their own legal fees, if they have their own lawyers.

Conclusion: The Place of Mediation in the Criminal Justice System

In criminal proceedings, mediation, when applied correctly:

• the victim with economic and moral satisfaction .

• Encouraging the perpetrator to take responsibility and contribute to social peace,

• Reducing the workload of the criminal justice system,

• Reinforcing the idea of ​​restorative justice in society instead of the concept of "revenge entrusted to the state"

It is an extremely important institution.

But for this to happen:

• The mediation process should not be seen merely as a "case closing technique,"

• The victim and the defendant must be genuinely informed and act of free will

• Mediators should be trained, competent, and impartial individuals

• Lawyers need to adopt a strategic yet ethical approach for both sides

A properly managed mediation process can yield more satisfying results than a classic conviction , benefiting the victim, the perpetrator, and society as a whole . Therefore, "Mediation in Criminal Procedure," as an institution that practitioners need to understand in depth and utilize effectively on a case-by-case basis, is increasingly strengthening its place in the Turkish criminal justice system.