PRE-TRIAL MEDIATION IN CRIMINAL CASES: STATE AND PROSPECTS OF DEVELOPMENT

Authors

  • Elena V. Mitskaya

Keywords:

mediation, prosecutor, criminal prosecution, criminal law conflict, pre-trial stage of criminal proceedings

Abstract

This article, based on an understanding of mediation as part of restorative criminal justice in foreign countries, presents an analysis of the assessment of the potential of existing legislation to finalizing a criminal law conflict through mediation at the pre-trial stage proceedings. The subject of the study was the norms of international law, resolutions of the Committee of Ministers of the Council of Europe, the Code of Criminal Procedure of the Republic of Kazakhstan, the Mediation Law of the Republic of Kazakhstan, the legislation of several European states such as Germany, Poland, France, Belgium, Spain, Finland, which allow to terminate using mediation in criminal proceedings with the aim of expanding pre-trial mediation in criminal cases in the Kazakhstani practice of its application. The method of comparative analysis of the procedural regulation of mediation in European states made it possible to determine the widespread use of the termination of criminal proceedings at the pre-trial stage by the prosecutor. Thanks to this, the potential of the Kazakhstani criminal procedure law to expand the use of pre-trial mediation has been determined. Justifying the prospect of terminating criminal proceedings through mediation at the pre-trial stage, it is proposed: the duties of the investigator are to be enshrined in the criminal procedure law, the possibility of mediation and its consequences are to be explained to the parties to the criminal law conflict by the inquirer; an exception to the Mediation Law on that the use of mediation shall not terminate the criminal proceedings; expansion of the rights of the prosecutor to initiate mediation at the pre-trial stage and termination of criminal proceedings by the prosecutor when concluding a mediation agreement, the obligation of the prosecutor to verify the compliance of the mediation agreement with applicable law is to be enshrined. These proposals will enhance the possibilities of pre-trial mediation, as they are aimed at improving the procedural mechanism of its application.

 

Published

30.12.2019

How to Cite

Mitskaya Е. В. (2019). PRE-TRIAL MEDIATION IN CRIMINAL CASES: STATE AND PROSPECTS OF DEVELOPMENT. Scientific and Legal Journal «Bulletin of the Institute of Legislation and Legal Information of the Republic of Kazakhstan», 4(58). Retrieved from https://vestnik.zqai.kz/index.php/vestnik/article/view/218