Mediation in criminal cases – A comparison
between Germany and Turkey
10th November 2017
Universitat de València
I. Classical concept
II. Consideration of victim
III. Restorative justice as alternative
IV. Implementation at pre-trail stage
V. Critics and some closing remarks
I. Crime and prosecution from the
perspective of classical concept
1. Aim of criminal law and objectives of punishment
Protection of abstract legal interest/goods: harming or endangering their
invocation.
A conflict of values between offender and public order: bipolar and vertical.
Guilt punishment: retribution (compensation of guilt) and prevention.
a socio-psychological fact societal benefit
hardship (atonement: possible) deterrence/rehabilitation/
incapacitation
Main punishments: prison sentence and fine
Criminal law: behavior control directed against offender and others!
Victim: holder of the legal goods, nevertheless excluded as subject of mental
disruption caused by crime for the purpose of criminal law.
Victim's material and immaterial damages: a matter of civil claim against
offender, a horizontal conflict.
Fault compensation: restitution.
I. Crime and prosecution from the
perspective of classical concept
2. Principle of crime prosecution
As the crime is against public order, the public prosecutor acts in the name of
the people in accordance with principles of legality, objectivity and fairness and
justice.
Prosecutor + court: inquisitorial for the finding of truth. No proof obligation for
the defendant.
Focus of criminal law: the protection of defendant from the coercive measures
of criminal prosecution and strengthening his/her positions in criminal
proceedings
II. Some aliud mechanism of victim
consideration within the classical framework
1. Victim's consent
Subject of the legal goods!
Principle of self-determination
Right to dispose
2. Victim's procedural participation
At the pre-trail stage:
For some minor crimes, such as insult or physical harm: Private prosecution, if
the public interest is not required otherwise. An atonement-process is
precondition!
In some cases, right to appeal against dismissals by prosecution and to compel
to file charges.
At the trial stage:
In some cases, as a collateral prosecutor beside the public prosecutor as a
mean of pursuing personal satisfaction.
Demanding of civil compensation within the course of court trial: “adhesion”.
In general: accepting with reservations!
III. Restorative justice as alternative
1. Starting points – initial objections against classical concept of criminal
justice
Drawbacks of incarceration: rehabilitation approaches and alternatives to
prison sentence.
Workload and economic reasons: simplification and acceleration of criminal
proceedings.
Extending the power of prosecutor: diversion mechanism.
International standardization: UN-Handbook of Basic Principles and Promising
Practices on Alternatives to Imprisonment
European Council: Resolution (76) 10 on certain alternative penal measures to
imprisonment (1976)
III. Restorative justice as alternative
2. Classical diversion mechanisms
Plus: mediation
Germany (§§ 153a, 155a CPC; 46a CPenC)
Turkey (§§ 253 et seqq. CPC)
III. Restorative justice as alternative
3. Emergence of victimology
Shortcomings of rehabilitation and deterrence through conventional
punishments: dissatisfaction and frustration with conventional criminal justice
system
Pro-victim arguments:
Not philosophical or theoretical foundation of criminal law, rather conditions
of human reality.
Not only criminal behavior and offender as criminal event, but also its
consequences and its victim as participants of a “crime relation” are of
importance.
Crime not only violates abstract values, but also individual rights: conflict
resolution needs the involvement of all parties.
Marginalization of victim: offender-centered criminal law. Not only the
reintegration of offender, but also that of victim is important.
Victim-offender relation is not like that of a debtor-creditor: public efforts in
favor of victim needed (protection of basis rights or idea of social state)
Criminal proceedings is unsuitable to consider mental impacts on victim, if
not deepens.
III. Restorative justice as alternative
3. Emergence of victimology
Claims: complete or partial replacement of punishment with mediation!
Emphasizing the abstract values or norms overlooks victim and
consequences of crime
Denunciation of certain behavior is not achievable through destructive
inflicting of punishment, positive denunciation is possible during mediation
process.
With regard to positive general prevention: participation of community in
mediation is possible
With regard to positive special prevention: mediation makes it for offender
easier to assume responsibility and to transform and to reform him/her
(atonement).
Instead of punishment, building and promoting “social harmony through the
healing of victims, offenders and communities” is to be pursued.
Stigmatization of offender is inhibited. Meditation is a “non-adversarial, non-
threating environment”.
Pragmatic reasons: adaptable and as diversion possible.
III. Restorative justice as alternative
4. International standardization
At the UN-level:
1985: The United Nations Declaration of Basic Principles of Justice for Victims
of Crime and Abuse of Power
1999: Handbook on Justice for Victims
2006: Handbook on Restorative Justice Programmes
At the level of European Council:
1985: Recommendation No. R (85) 11 concerning the position of the victim in
the framework of criminal law and procedure
1999: Recommendation No. R (99) 19 concerning mediation in penal matters
IV. Implementation at pre-trail stage
1. Restitution order
Result-oriented: payment or services for victim.
Applicability:
Germany: offences do not require a minimum mandatory punishment of one
year prison sentence or fine (misdemeanor)
Turkey: offences prosecutable upon a complaint by victim and require
maximum one year prison sentence
Conditions:
Germany: the degree of offender's guilt not severe and public interest satisfied
by restitution order
Turkey: no previous record of crime punished by prison sentence, favorable
prognosis and dismissal better for offender and public
Appealiablity by victim:
Germany: no
Turkey: yes
IV. Implementation at pre-trail stage
2. Mediation
A real alternative informal process, negotiation-oriented.
Applicability:
Germany: in theory all crimes, in practice centered around bodily injury,
criminal damage, insults, offences against personal freedom, property and
asset related crimes and also robbery
Turkey: limited crimes, crimes prosecutable upon a complaint by victim (e.g.
insult, bodily) harm, and some other listed crimes including threat, theft and
fraud of medium seriousness (no robbery or blackmailing)
Priority:
Germany: in competition with conditional or unconditional dismissal and penal
order.
Turkey: first mediation, than dismissal by restitution order, penal order not
applicable.
Obligation to lunch a mediation process:
Germany: weak-imperative
Turkey: strong-imperative
IV. Implementation at pre-trail stage
2. Mediation
Institutionalization:
Germany: under supervision of prosecutor, mainly carried out by court service
or special independent organization
Turkey: under supervision of mediation division of prosecution office, carried
out by lawyer or law-educated university graduates
Mediation process:
In both countries between the offender and victim of crime, no community
participation.
Content of process:
Germany: focusing on hearing the victim, satisfying his/her emotional needs
Turkey: focusing on restitution of damages
Procedural consequences:
Germany: dismissal of charge or trial (in case of misdemeanor) or mitigating
the sentence (in case of felony)
Turkey: dismissal of charge or trial and no tort claim is possible. Mediation
agreement is equal with enforceable court decision!
IV. Implementation at pre-trail stage
3. Restitution order and mediation in figures
Available statistics:
Germany: no information about the number of restitution order as condition of a
dismissal by prosecutor.
No nationwide information provided by criminal justice authorities. Estimation
based on number provided by some local mediation programmes.
Turkey: no numbers of dismissal with a restitution order.
Only numbers regarding dismissal on the ground of a succeeded mediation
agreement, at pre-trail or court trial stage (e.g. no information about kind of
offences mediated) .
IV. Implementation at pre-trail stage
28,5 %
3,5 %
27 %
10,9 %
8,6 %
21,5 %
DISMISSAL (UNCONDUTIONAL)
DISMISSAL (CONDUTIONAL
DISCHARGE (NO REASON FOR PROSECUTION)
PENAL ORDER
FILING A CHARGE
OTHERS
0 5 10 15 20 25 30
Decisions by prosecutor offices in 2015Total number of investigation proceedings: 4, 989, 559
https://www.destatis.de/DE/Publikationen/Thematisch/Rechtspflege/GerichtePersonal/Staatsanwaltschaften2100260157004.pdf?__blob=publicationFile
3. Restitution order and mediation in figures (Germany)
IV. Implementation at pre-trail stage
3. Restitution order and mediation in figures (Germany)
Numbers from mediation programmes: not all provide data and not all
mediation cases are covered!
For instance, there are approx. 450 mediation programmes in Germany and
2014 only 67 programmes attended the survey (15,3%). 2014 approx. 11.200
cases were dealt by mediation programmes and only 7.393 cases (66%) were
covered by mediation programmes which provided data.
85,6
8,1 2 20
20
40
60
80
100
Mediation-stage of proceedings 2014
pre-trail after filing charges court trail after court trial
IV. Implementation at pre-trail stage
3. Restitution order and mediation in figures (Germany)
54,6
14,6
10,6
1,4
31,3
0 10 20 30 40 50 60
Bodily harm
Offences against property and asset
Dameges to property
Robbery and blackmail
Others
Categories of mediated offences (2014)
Precentage
IV. Implementation at pre-trail stage
3. Restitution order and mediation in figures (Turkey)
Decision of discontinuation by prosecutor (Turkey)Year Fine Order Mediation Time-barred Other
reasons
Total
2009 9 474 1 422 174 321 1 805 749 1 990 986
2010 5 391 3 740 138 766 1 859 600 2 007 497
2011 1 937 3 719 47 048 1 911 543 1 964 247
2012 1 101 5 176 45 513 2 138 985 2 190 755
2013 895 8 414 127 388 2 398 701 2 535 398
2014 770 8 998 239 264 2 728 381 2 977 413
2015 1 167 8 485 223 449 2 999 300 3 232 401
2016 1 205 13 491 176 889 2 749 013 2 545 419
http://www.adlisicil.adalet.gov.tr/AdliIstPdf/2016.pdf
2016: only approx. 0,5% of cases are settled by mediation at pre-trail stage.
IV. Implementation at pre-trail stage
2016: only 13 491 cases are concluded by mediation at pre-trail stage
3. Restitution order and mediation in figures (Turkey)
IV. Implementation at pre-trail stage
3. Restitution order and mediation in figures (Turkey)
Since 2009: mediation bureau established with the prosecutor office.
2016: more than 40% of mediated cases came from Izmir.
2015: Decision of
Discontinuation (Local
differences )Provinces Mediation
Istanbul 156
Ankara 149
Izmir 3 833
Antalya 308
Bursa 1 459
Konya 41
Adana 15
Mersin 39
Kocaeli 38
Gaziantep 196
http://www.adlisicil.adalet.gov.tr/istatistik_2015/CUMHUR%C4%B0YET%20BA%C5%9ESAVCILIKLARI/17.pdf
2009 2010 2011 2012 2013 2014 2015 2016
Izmir 38 417 1611 3242 4947 3886 3833 5924
IV. Implementation at pre-trail stage
4. Reasons of low output
Regulatory:
Germany: penal order and unconditional dismissal are more attractive.
Turkey: limited amount of applicable offences
Legal Subculture:
In both countries: standard reservations against mediation, (less informed, little
experience, time-consuming, not fitting into “system”, not convinced from its
justness, felt need of punishment, mediation only for emotional satisfaction, not
a legal resolution of conflict)
Problems in carrying out:
Bureaucratic/organizational obstacles, lack of interest on the part of parties,
transmutation of mediation into “just another pre-trail step”.
V. Critics and some closing remarks
Unsolvable theoretical-system arguments: “Decentralization, privatization and
informal justice” versus “social control based on penal law”.
Dogmatic objections:
Moral responsibility of offender and moral condemnation and : lose on
importance. Distinction between punishment and reparation disappears!
Mediation is difficult to reconcile with conventional purposes of punishment.
Structural objections:
criminal justice administration: professional, selective, formulized and coercive
in conflict resolution, whereas mediation is a quite vague concept and not
wholly integrative (administrative efficiency)
Nature of mediation: “a mixture of criminal, civil, and non-legal elements”
Result:
Restorative justice within the conventional framework of criminal justice: not
wholly realizable (no substitution), but only partially (complementary).
Thank you for your attention
Dr Mehmet Arslan
Senior Researcher
Max-Planck-Institut für ausländisches
und internationales Strafrecht
Günterstalstr. 73
79100 Freiburg i.Br.
Tel.: +49 (761) 7081-311
Fax: +49 (761) 7081-294