MEDIATION AS A WAY OF JUSTICE - The Criminal Mediation
MEDIATION AS A WAY OF JUSTICE
The Criminal Mediation
J.O. Cardona Ferreira
I
The proclaimed crisis of Justice, and how this affects the judicial system, means that even though the disease has been diagnosed, we have to think which medicine to prescribe to improve the system, in other words, which can be applied with a view to improvement. And, in the context of these medicines, are the so-called alternative methods, including mediation.
The problem is that the expression “alternative methods” has given rise to alternative definitions or different meanings.
Justice may be seen as imposing, injunctive or dialogue-based, and co-operative.
Mediation is viewed as an alternative means of Justice but, in my point of view, it should only be seen as a mechanism, a tool, although functionally autonomous, works in harmony with Jurisdiction.
Justice, constitutionally, is for the Courts, given the constitutional reserve of its application.
Therefore, the alternative aspect should be the manner in which Justice is executed – tending towards dialogue and co-operation - and not by the Entity or an apparent "parallelism" that is never truly so, and in my point of view, is tantamount to a narrow sense of the unity of Justice or, in another perspective, controversial in the light of the principle of separation of Powers of the State .
On the whole, mediation, of which I am a supporter, appears today to be more dynamic but, just like Justices of the Peace, Arbitration or Conciliation is already integrated in the judicial system – and although it may have come down through the centuries it is of course, revisited and refashioned.
For example, Regulations from 1519 include "Orders and Regulations of Conciliators of Demands" , which is an authentic regulation for Justices of the Peace and mediation.
In my opinion, today mediation is an excellent mechanism that should be a resource for any Court, without prejudicing the role of the Judge, especially his ability to homologate - or not - any agreement, although the homologation of an agreement is itself a proper sentencing by a judge, but worth noting nonetheless.
Comparative law is moving in this direction, namely French law and the proposed Communitarian law .
Mediation has specific characteristics, such as not being executed by those who would judge the action should it advance to litigation - which is not to say that a judge cannot be a mediator, but rather that the mediator should not be the judge of said litigation. For all this and more, I feel it desirable that mediation is included in the scope of jurisdiction, achieving, with this, uncontroversial goodwill that can and should contribute to the confidence of citizens. Jurisdiction and mediation can only gain from this conjugation and, with this, the citizens will win: which is the most important.
II
This is all due to the proposed legislation on criminal mediation.
Criminal mediation is perhaps the most controversial type of mediation. This does not mean that it is not suitable, although it requires careful handling in my opinion, relating as it does to private crimes that are obviously serious and where the difficulty lies in reaching an agreement between victim and offender, especially in terms of the community itself.
The criminal mediation of adults follows directly from the Decision of the European Union (Council) of 15.03.2001 (2001/220/JAI), and has achieved broad consensus.
The only doubts that arise are on how to implement the criminal mediation process.
The comments that follow are those I presented when I had the honour to be heard regarding the legislation proposal for criminal mediation of adults.
I wish to make it clear – as I express throughout the text – that this is a positive innovation. However, I would like to add that I would prefer more emphasis be given to the nuclear values.
My only aim is to co-operate on the path to that which I call co-operative Justice
By nature, legislators are the holders of the Legislative Power of the State.
Although if truth be told, I think the best way to effectively co-operate, civically, with the Legislative Power of the State is to suggest what best seems appropriate.
With this in mind, I will continue.
III
The Proposal of Legislation for criminal mediation of adults, whose studies have been meticulous and should be completed in 2007, are based upon, as previously mentioned, a Decision of the EU, qua tale binding. It is still worth emphasising that there exists, in addition, a broad spectrum of consensus on justification of innovations in conflict resolution.
I myself am a supporter of the measure in question – mediation –and am absolutely convinced of its necessity, reasoning, and the overall balance of the Proposal; despite some suggestions put forward by the Counsel of Accompaniment of Courts of Peace, which I have the honour to preside.
Not wishing to go into too much detail, I will only touch on three issues - to me the most relevant and, I believe, the most difficult. But we should deal with them head-on and decide options.
I will not cover issues that I consider secondary, even though they are of equal importance and may be easier to tackle, and limit myself, very briefly, to mention a few:
1. Why not also provide for mediation, as an initiative of the victim or the accused, during the criminal proceedings (article 3, paragraph 1)?
2. Why not permit that the mediator can be appointed independently of the "sequential" rule, based on the circumstances of the case [arts. 3 and 11, paragraph 2 c)]?
3. Why shouldn’t the Prosecuting Counsel clarify the interest of the parties in mediation before advancing, perhaps avoiding useless actions (art. 3 paragraphs 1 and 2)?
4. Why not establish that Prosecuting Counsel can insist on mediation, despite the opposing view of the mediator (Article 3, paragraph 3)?
5. As it is an informal system, why not dispense the formality of the written consent of mediation (art. 3, paragraph 4 and 4, paragraph 1)?
6. Why not also allow for a solicitor to accompany the accused and/or the offender rather than limiting this accompaniment to a lawyer or trainee lawyer (art. 8)?
7. Why not rethink the fiscalization commission for the activity of mediators, foreseen in Law 78/2001, paragraph 6 of art. 33, which did not come into force (Article 10, paragraph 6)?
8. Why not apply the system of criminal mediation on proceedings pending the entry into force of the future law, as it is such a positive step ?
9. Why not include within the law, the Counsel of Accompaniment of the Justices of the Peace on the list of evaluators of criminal mediation entities, as and when this occurs in the Peace Courts (Article 14, paragraph 2)?
IV
In my opinion, the proposed layout shows a significant improvement on the Draft.
Indeed, as I have already said, I support the Proposal in both its intent and its general outlines. The questions I raise next result from my modest intention to contribute to the just and necessary success of criminal mediation, in particular, of the Decision of the EU, Recommendation 99 (19) European Council (Committee of Ministers) of 15.09.1999 and, even the Proposal of Directive of the EU [SEC (2004) 1314] of 22.10.2004 that, although applies directly to civil and commercial mediation, is based on principles and relevant values for any type of mediation, in a perspective of standardization within the Union.
As previously mentioned, I consider the key points, although the most difficult and/or controversial to be:
a) The dimension of the confidential character of mediation (art. 4, paragraph 3 and 11, paragraph 3).
I know perfectly well – as do all those dedicated in studying the systems of extrajudicial Justice - that confidentiality is an essential attribute of mediation. The previously mentioned Regiment of 1519, a remarkable text on "Conciliators of Demands," genuine Judges of Peace stated the same thing.
But is this attribute of mediation absolute?
I don’t believe it can be.
Furthermore, this is implicit in paragraph 3 of art. 4, and in my opinion, raises doubts on interpretation and application that should be avoided, when it foresees non-valuation "as evidence in criminal proceedings."
What does this mean?
When analyzing texts on this matter and the reason for confidentiality, it is clear that this feature tends to increase confidence of all parties, confers with their presumable willingness and means that the mediation discussions may not be used as evidence in criminal proceedings, in particular if that is the case being tried. This is a protective measure for the interested parties.
But, if we consider the suppositions of confidentiality, I believe that we cannot leave out of the scope of confidentiality possibilities of agreement between those being mediated and the mediator for the use of these conversations in the process, if this advances. I emphasize: with agreement of the parties and while guaranteeing the value of the confidentiality.
And as is clear from the cited Proposal of EU Directive, rather than a generic confidentiality, the values concerning “imperative reasons of public order, particularly when necessary to ensure the protection of children or to prevent physical or psychological harm of a person" should prevail, however, I would say the same applies to the practice of any criminal action .
Significantly, paragraph 4 of the EU Code of Conduct for Mediators, 02.07.2004, although non-authoritative, prescribes, as a principle, that the mediation sessions are confidential with a caveat on "legal duty" or "agreement" of the interested parties. In line with exception to the confidentiality regime of mediation, art. 13 in the Regulation of Mediation in Justice of Peace, has been approved by Order in Council No. 1112/2005 of 28.10.
Likewise, this is reflected in art. 135 of C.P.P. referring to, of course, the procedure of professional secrecy, but does not exclude the substantive regulations of the professional entity in question.
Naturally, the legislation must be carefully drawn up because confidentiality is the principle behind mediation. But, in my opinion, it cannot be absolute. Apart from the probability of agreement of the parties, let us suppose that during mediation a future crime is revealed. More sensitive is the revelation of previous practices of another crime that is not the case in question.
In conclusion:
I believe that explicit clarification of art. 4 paragraph 3 and art. 10 paragraph 3 (professional secrecy) is justified, assuming the principle of confidentiality, especially in the process in question, but excluding an agreement between the interested parties and reasons of interest of public order.
b) The restriction of the mediation to the criminal investigation phase (Article 3)
I am aware that the project is experimental.
Furthermore, no law is definitive.
The question is precisely because it is experimental; we should take a bigger step.
I think that Justice is what is important; not the systems. These are simply a means to achieve that end. With this in mind, the different systems should be inter-disciplinary. There should be no competition, but rather confluence. That is to say, taking into account the aforementioned constitutional reserve of the application of Justice, which is for the courts, mediation should be a tool to help the realization of justice, without excessive limits and without removal of jurisdictions.
Combining this idea with that of not restricting mediation to any given phase of the criminal process, as stated in Decision of 15.03.2001 and, more clearly, given the non-limitation terms of the Recommendation No. R (99) 19 Council of Europe, which clearly states that mediation in criminal matter should be possible at all phases of criminal proceedings, I believe it would be best not to limit the possibility of criminal mediation to the investigation phase. If the measure is fair and useful (and it is), it is fair and useful at any procedural phase. Naturally, this would rightly lead to the judge being able to propose mediation to the interested parties. This, indeed, would not go against the possible initiative of Prosecuting Counsel.
In conclusion:
I would extend the possibility of criminal mediation, immediately, although experimentally, to any procedural phase.
c) Finally, based on the line of inter-discipline and harmonization that should exist between the intervenient procedures I would not remove the judge from this proposed innovation.
The Judge is a servant of his fellow citizens, called to decide on behalf of the People . All the magistrates and, therefore, all Judges must also have clear suitable training in extra-judicial systems, such as mediation. And, if such training should become scarce, then it is not only judges that suffer from this scarcity. It is a simple matter of common sense.
Furthermore, the criminal procedure is characterized by a line of procedural harmonization between the action of the Judge and the Prosecuting Counsel - which, obviously, does not remove from Prosecuting Counsel the role of the prosecution or the Judge from jurisdictional independence .
Moreover, in any situation of criminal mediation where an agreement is reached, not only is the perception of clear awareness of those involved in question, but also, legal limits, proportionality and, essentially, human dignity (Article 6, paragraph 2 of Proposal) and, therefore, a constitutional principle (expressly, of the dignity) . I believe that even in this context the homologation should be made in the presence of those interested.
And, of great importance, normally, the sentence of the accused will be in question. The crime may be "private", but punishment is a condition, typically jurisdictional.
Note, in particular, in art. 4 paragraph 1 of the Proposal: "... agreement that allows the repairing of damages caused by illicit fact and contributes to the restoration of social peace"; and in art. 6 paragraph 2: "The agreement cannot include penalties of deprivation of liberty or duties that affect the dignity of the accused or extend in time for more than six months."
This means that duties can be imposed on the accused not only for damages but, also, an alternative to prison, as long as these respect the dignity of the accused and have a time limit. But, this also means, I believe, that there must exist concrete proportionality not only in terms of the essence of the sanctions but, also, in a temporal dimension.
This approach can raise, specifically, identical options to the particular provisional suspension measures of criminal proceedings, described in paragraph 2 of art. 281 of the CPP:
"The accused must comply with the following writs and rules of conduct:
a) compensate the injured party;
b) Give appropriate moral satisfaction to the injured party;
c) Hand over to the State or a private charity a certain amount;
d) Not exercise certain professions;
e) Not frequent certain venues or places;
f) Not reside in certain places or regions;
g) Not accompany, house or receive certain persons;
h) Not have in their possession certain items which might facilitate committing another crime;
i) Any other behaviour specifically required by the case.
As similar orientation, there exist duties relating to the suspension of a prison sentence .
And we should not forget the specific rules of the institute in question, namely those that result from the cited arts. 4 paragraph 1 and 6 paragraph 2 of the Proposal under review.
In this context, the homologation of an agreement within its natural contours is, in itself, an act of jurisdictional intervention. This does not mean there is a lack of consideration for the essential interventions of others in the Justice system, apart from the Judge. All are necessary and all are important. And nobody is forbidden, within their respective assumptions, to opt for the jurisdictional function. Less acceptable would be confusion between role and output.
Besides, if we analytically view the text proposed, we may surmise, if we go beyond the literal - that, much more important than this, in any legal hermeneutics - at the time of homologation of the mediated agreement, the result is not so much an immediate withdrawal of the complaint - which, if this were true, would have irreversible consequences – but, rather under one name or another, a sort of procedural suspension or, if we prefer, which substantially has the same end-result, a type of withdrawal under resolute conditions, in an exchange of conditions - substitute sentence. Of course, if the complaint were to be withdrawn, art.116 of C.C and art. 51 of C.P.P. : art. 4, paragraph 1 and 6, paragraph 2 of the Project would be taken into account.
The model of the importance of the agreement seems right to me. What I think about, therefore, is its real meaning and the consequences, in the harmony of the legal system.
If, in the essence of things, what is in question is a procedural suspension, conditioning the conduct of the accused, it follows that, in light of art.32 of C.R.P. and in line with art. 280 and 281 of the C.P.P., a judge’s position must be considered before the decision of the Prosecuting Counsel, admitting that, given the procedural phase, the decision will be of the Prosecuting Counsel (without prejudice of the constitutionality of the system assumed jurisdictional concordance, that is to say of a Judge: cited Ac T. Const. No. 7 / 87 of 09.01.1987, in DR, 1st series, sup. of 09.02.1987; Ac. Rel. Guimarães of 16.01.2006, Proc. 541/05-1). It is also a parallel situation to that of a suspended sentence (art. 492 et segs C.P.P., art 51 C.P) and summary criminal proceedings (art. 392 º et segs. of the C.P.P.), mutatis mutandis.
What I believe we should add is that to withdraw a complaint is one thing; stipulation of conditions is another.
I believe that it is not the agreement or the homologation that, in fact, lead to the end of the process and the withdrawal. But rather the fulfilment of constraints - substitute of punishment – by the accused, or the timeframe of a month after non-fulfilment: as stated in art 5, paragraph nº4.
At best, we should say, that it is a type of withdrawal under resolute conditions. But this is not enough to lead to a "provisional term" of the enquiry because Prosecuting Counsel has to supervise the fulfilment of the agreement: art. 6, paragraph 3.
The idea of simple suspension of the initial complaint is reflected in art. 6, paragraph 2, as regards the suspension until the date fixed for fulfilment of the agreement, assuming that this will occur.
All this means that we should consider the real provisional suspension of prosecution as outlined in art 281 of the C.P.P.
And herein lays the issue.
Even assuming a more literal reading of the situation for those who understand that it is not conditional suspension, I believe of course that the situation is, clearly analogous to the suspension - much more than the immediate withdrawal in most cases - and, therefore, I believe that the system that should be brought in is that of the harmonization of Prosecuting Counsel/Judge and therefore intervention by a Judge, since the meeting of conditions will lead to an alternative sentence. In fact, I think it unreasonable to choose different solutions for similar situations. Art.281 of CP is precise on the need for intervention by a judge, even during the investigation phase; we cannot forget the underlying constitutional dynamic, as outlined in art.32 of the CRP and the Constitutional Court, Ac.7/87.
On the other hand, in comparative law, French legislation states that without prejudice to the initiative of the Prosecuting Counsel, when the criminal mediation agreement is reached, the Public Prosecutor requests or proposes validation of the agreement by the President of the Court: art.41-2 of French C.P.P.
And, if we look at the EU Directive Proposal [SEC (2004) 1314], referring to civil and commercial mediation, but with general rules more relevant in Public law, there we find the privileged confirmation of sentence (Article 5), which is a typical act of a Judge .
Returning to Portugal, Portuguese law has measures based on criminal mediation, without exclusion of jurisdictional intervention: art. 42 and 104 of Law No. 166/99, from 14.09 (on this topic, there is a very interesting set of rules, of the Institute of Social Reintegration, 2004).
Likewise, in the courts that are the Courts of Peace, the system used is also the homologation of the agreement by the judge, even when reached in mediation and related to criminal matter.
I believe the basic system should be harmonious. Otherwise, for instance, on mediation agreements conducted in Courts of Peace, even within the jurisdiction of the Justice of Peace, this could lead to restrictions in jurisdiction, and therefore to unfair situations .
Of course, one common law may have a different orientation from another common law. But I don’t believe that we wish to unbalance the system, especially as it is true that there must be unity or uniformity across the whole justice system that, in this case, is consistent, reasonable and respects constitutional principles.
As I see it, the various systems of justice - even those so-called "alternative" or extra-judicial - cannot be doors of different buildings. They must be doors of the same building.
Restorative Justice is certainly desirable.
But I think that its success derives from the confidence of the jurisdictions and the citizens. That which we describe as the right to a Judge will contribute to this confidence.
Criminal mediation is a route that can be taken on the path of Justice, within a specific perspective although embraced by the vast concept of "deviation", to use a well-known expression of José de Faria Costa . However, the paths of "deviation" in criminal procedural matters are rooted in measures such as suspended sentence or procedural suspension.
Besides, for mediation to exist, it must stem from a sense of co-operation.
Co-operation between accused and victim, made possible by the mediator, will be more successful if we add the value of co-operation between Prosecuting Counsel and Judge, without prejudice, rather making full use of the opportunity.
I cannot, however, forget the idiosyncrasy of the country we are. Therefore, I consider the possible scope of the words of José de Faria Costa in the cited study, speaking about the paths of "deviation" and mediation (BFDUC, LXI, 155/156):
"... happens, that, in particular, the recourse of a judge who is above the parties in conflict, anointed, even formally, by virtue of impartiality that the duty gives him, gives to the decision rendered by them an undisputed dignity whose resonance is reflected in the fact that large sections of the community consider further as the only valid and legitimate expression of the application of justice, especially when it comes to criminal issues ....”
In fact, I maintain that the jurisdictional intervention, far from detracting from the mediation, will further enhance its relevance, acceptability and, therefore, efficient restoration of Peace.
In summary:
• Whether by virtue of a typical situation of suspension of criminal proceedings;
• Or, at least, by the discovery of a situation in everything similar to the suspension of criminal proceedings;
• Whether considering the principle of intervention by the judge even in the investigation phase, for constitutional reasons;
• Whether considering the principle of harmonization of criminal procedure between judicial functions and Prosecuting Counsel;
• Whether considering comparative law;
• Whether putting in perspective the EU policy of conjugation between Jurisdiction and mediation;
• Whether without prejudicing the autonomous function of mediation, considering the added value that results from the co-operation of a judge in the validation of an agreement reached in the mediation process;
• Whether considering the public interest of Criminal Procedural Law and Criminal Law;
I conclude:
I believe that to edify the mediation process and contribute to generate harmony and trust in the new system, it is totally justifiable for a judge to intervene in the validation process of a mediated agreement: either a Justice of the Peace, if mediation took place in the Court of Peace or if the matter falls under paragraph 2 of art. 9 of Law No. 78/2001, or the investigating Judge in other cases: obviously during the investigation phase, as during the judgement phase that validation is of the Judge’s competence.
V
Finally:
I reiterate in a simple sentence – the idea, all that I believe in: co-operation or co-operative Justice: more than co-habitating systems of justice, the time is right for co-operation.
Co-operation: with a non-conflicting, non-sectarian, non-belligerent vision; under the perspective of a new frontier of Law - Procedural as well as Criminal.
Co-operation: between plaintiff and defendant, and both parties and the mediator.
Co-operation: between mediation and Jurisdiction.
Co-operation: between Judges and Prosecuting Counsel
Co-operation: between the Powers of the State
Co-operation is the civic posture I intend to adopt when speaking on this topic, suggesting certain changes precisely because I congratulate the initiative of criminal mediation of adults. I sincerely hope it will be totally co-operative.
January 2007
Jaime Octávio Cardona Ferreira
Note: Portuguese Law on criminal mediation No. 21-2007 of 12 June has since been published, establishing a two year trial period, before review (Article 14). The comments above are also therefore a contribution for the future.
