CAUTION !!! automatic translation from Polish
- Mediation in criminal proceedings
Section 23a of the Code of Criminal Procedure provides the legal basis for conducting mediation in criminal proceedings. Such mediation takes place between the defendant and the victim. The main aim of mediation is to reach an amicable resolution of the conflict arising from the offence in the presence of a third party (the mediator), who should maintain a neutral stance towards the parties. It is also accepted that mediation helps to achieve so-called restorative justice, as it safeguards the victim’s legally protected interests. However, one must bear in mind the existing risk of secondary victimisation of the victim, given that there are no substantive restrictions on referring a case to mediation, which means that, in practice, mediation is possible for any offence, regardless of its severity. A case may be referred to mediation by a court or a court clerk, and during the pre-trial proceedings – by a prosecutor. Importantly, the authorities may do so only with the consent or on the initiative of both the defendant and the victim, which means that it is not possible to refer a case to mediation solely on the initiative of the authority, without the consent of the defendant and the victim. The Regulation of the Minister of Justice sets out who is authorised to act as a mediator. A person or institution is authorised to conduct mediation once certain conditions have been met; however, the primary requirement is inclusion in the register of institutions and persons authorised to conduct mediation proceedings before a regional court. In accordance with the second paragraph of the provision in question, mediation proceedings should not last longer than one month; however, this timeframe is merely indicative, and exceeding it will not render the entire mediation process invalid. The proceedings themselves are to be conducted in an impartial and confidential manner, and are concluded with a report by the mediator, limited, however, solely to the results of the mediation, omitting any account of its precise course, as this would breach the requirement of confidentiality. In the context of mediation, Article 178a of the Code of Criminal Procedure also plays a significant role, as it provides for an absolute prohibition on questioning the mediator regarding facts which he or she has learnt from the parties during the mediation. The results of the mediation and the report on it are, of course, taken into account when determining the sentence, and may lead to an extraordinary reduction in the sentence or even a conditional discontinuation of criminal proceedings.
- Mediation in criminal proceedings
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