Mediation practice in the criminal justice system

01 Mar 2009

In the scope of “Development of Mediation Practice in the Criminal Justice System of Turkey”, a joint initiative of UNDP and Ministry of Justice, training of trainers sessions were held in Ankara between 2-13 February 2009 with the participation of 100 judges and prosecutors from all over Turkey.

New Horizons - The objective of these sessions is to have a pool of resource people in Turkey about victim-offender mediation in criminal justice. Realized by an interactive approach and role plays facilitated by professional experienced mediators, trainings enabled vivid discussions on the possible challenges and advantages of victim-offender mediation practice in the context of Turkey.

These sessions represent the continuum of a process that commenced in March 2008 by a perception and needs assessment on victim-offender mediation followed by a two-day-workshop in June 2008 where the findings of the assessment were discussed and a two-day working group meeting in October 2008 where the topics for the training of trainers sessions were identified.

Upon the completion of this process, training manuals were developed by the international and national consultants in consultation with the relevant unit of the Ministry of Justice, namely the General Directorate of Criminal Affairs. The training manuals include UN Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, Recommendation N.R (99) 19 of Council of Europe on Mediation in Panel Matters, Strategies for the Promotion of Use of Victim-Offender Mediation, Code of Conduct recommended by the Association of Victim-Offender, existing legislation of Turkey on mediation, preconditions of successful mediation and successful mediation practices. 

Attended by the judicial actors, who are the main authorities promoting victim-offender mediation practices in their respective courthouses, the sessions also provided important inputs for the project as the practice related challenges were also debated extensively.  In the course of the project, a website will be created, a handbook for the practitioners will be developed and awareness-raising activities will be carried out in big courthouses.

Regarding the practice of mediation in criminal justice systems, New Horizons spoke with three experts: Prof. Dr. Cumhur Şahin (Deputy Rector, Gazi University, Turkey), Michael Konigshofer (Expert Mediator, Austria) and Alenka Meznar (Former Supreme State Prosecutor, Slovenia).

New Horizons: What is mediation? How is it  practised in criminal justice systems?

Prof. Dr. Cumhur Şahin: Mediation is a process of finalising a criminal matter by placing an emphasis on the wills of a victim and an offender who are parties of a criminal matter. In other words, the will of parties does not have any significance in our legal system. When there is a criminal matter, the state takes an action, prosecutor carries out an investigation, brings a lawsuit, then a court tries. If a person is found guilty, he/she is punished and executed; if not, he/she is acquitted. Neither a victim nor an offender initiates anything. They are just part of a process. This is a time-consuming and costly system. When we try to deal with all criminal matters through this system, no country can sustain it. In societies where there is a lot of criminal matter, this blocks a justice system.

Therefore, alternative ways have been developed to resolve conflicts. These alternative approaches firstly started in Anglo-American countries and then to a certain degree have influenced continental European countries and were integrated into their relevant legislations. Because of the fact that the classical system is too slow and cannot provide expected benefits, other approaches have been sought, and mediation is one of them. Mediation is an alternative for a classical system which is slow, creates a lot of workload and more importantly cannot really satisfy victims. The state punishes and executes the guilty, however, victims are never content with that. Generally victims say: “The guilty was jailed, but how does that benefit me?” Mediation places an emphasis on victims and ensures that we understand the perspective of victims and their suffering and that victims can be satisfied in another way except that offenders are punished. Mediation therefore is a system that gives importance to victims and strives to satisfy them.

NH: What is the situation in Turkey with regards to practising mediation in criminal justice system?

CŞ: Until recently the classical system had been implemented, that is, investigation, trial, penalization system. Mediation is a new approach. Every society approaches it with caution. This is a sort of revolution in law. Societies resist every revolution. Practitioners show caution because they are asked to do somehting outside of the system they get used to. In times of conflict, people are not psychologically ready for reconciliation so they can react in an angry way when mediation is offered. Public approaches mediation with caution as well for many reasons one which is a new approach for practitioners and parties. In fact, every country experienced a similar process. This system should be implemented through other measures. These meetings are part of that effort. We are trying to identify obstacles facing the mediation system and researching to find remedies for that. In fact, judges, prosecutors and lawyers, who will practise mediation, are accustomed to certain practices. Then, you say: “Let’s stop doing that and start this one!” They should be psychologically ready for that.

Currently we experience the challanges of that preparatory period. The mediation system should be introduced well and supported by other measures. Practising mediation should be made easier especially for prosecutors and judges. We expect sacrifices from them by saying: “You are very busy but please do it for the sake of your country.” They are public officials and they want it to be reflected on their careers. There should be legal regulations or incentives. We should promote the mediation system for judges and prosecutors. Simply saying “You must obey the law” is not enough. There are two ways in the law: the classical one and mediation. When they practise the classical way, they are promoted, thus it contributes to their careers. Nevertheless, when they practise mediation,  nothing happens. We should prevent that. Just like they are rewarded in the classical system, an equal rewarding system should be established in mediation. Judges and prosecutors, who practise mediation, should be appreciated and the structure of mediation should be seen as doable. These are the deficiencies that we identified.

NH: What type of cases can be referred to mediation?

Michael Konigshofer: A lot of cases can be referred to mediation but not all. You need to build a system, because there are some cases you cannot mediate. You cannot send the cases of organizations and really hard criminal cases to mediation. Mediation is an answer for a fraction of cases, such as mostly social conflicts, like neighborhood, traffic situations, and all small general cases.

NH:  Does the practice of mediation vary depending on cultures? To what extent do you think the Turkish culture is ready for the practice of mediation or can adopt it?

MK: Mediation is not really a new concept, not in continental Europe, not in Turkey or not in Africa.  People everywhere have measures to solve their conflicts. But we have to see it like a mirror of the development of the society. You also have to develop the criminal penal system to have the right answer for the development of the society. For example in the middle ages, we had some people who had the possibility to solve the conflicts between the farmers but if you said something against the king, they would cut your head away. In the development of the national state, it was necessary to make the penal system very strong…I think we are currently not in such a situation; development is achieved. So we can give back the conflicts and offences to the people as a part of the criminal system.

NH: Slovenia is a good example in terms of implementing the practice of mediation. Could you please explain how Slovenia achieved this? Also, what can Turkey learn from Slovenia’s experience?

Alenka Meznar: I had a very strange position while explaining my Turkish colleagues the implementation of victim offender mediation into Slovenia’s criminal law. Slovenia is a very small country, we have 200 prosecuters. Some of my Turkish colleagues began to laugh, they could not understand how many criminal cases the Slovenian prosecutors are dealing with, compared to those of Turkish prosecuters.

When I was in Ankara for the first time, I told them that Slovenian prosecutors are living in heaven because they have a very small work load you know... But it doesn’t matter, the main point is how they started to work in practice. The implementation overall was not difficult. In 1999 we made some ammendments to our criminal proceeding law. It was just in that time when recommendation about victim offender mediation was accepted. We only implemented those important facts from the recommendations into our criminal proceeding law and after one year we started to practice it. In that time there were only 150 prosecutors as far as I remember. We could train all of them together at once. After that we appointed about 200 mediators because we decided to have voluntary mediators in Slovenia. In Slovenia we have no probation agency…So we decided to have voluntary mediators, then we had to train those mediators too. After the first year, we recognized that almost 2000 cases were referred to the mediation. Then in the second year and the third year the number of cases was the same... But after that, the number of the referred cases slowly decreased, because our prosecutors not only had this kind of alternative measure but they could also use others; for example suspended prosecution… The main problem all prosecuters have in all over Europe is that they don’t trust mediators. I believe that is why Turkish prosecutors, although they are complaining about the work load, they want to do mediation themselves. It is a strange situation because everybody says “we have  a lot of workload”, on the other hand, they want to carry out the practice of mediation by themselves. What does it mean? More work. They are complaining that they don’t refer enough cases to mediation. So I think that the most important task is how to convince them to refer more cases to mediation. That is very hard to do now, because of the trust issue. It is the same everywhere in Europe. You can have professional mediators and voluntary mediators.