COUNCIL OF EUROPE

COMMITTEE OF MINISTERS

Recommendation No. R (99) 19

of the Committee of Ministers to member States

concerning mediation in penal matters

(Adopted by the Committee of Ministers on 15 September 1999

at the 679^th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

Noting the developments in member States in the use of mediation in penal matters as a flexible, comprehensive, problem-solving, participatory option complementary or alternative to traditional criminal proceedings;

Considering the need to enhance active personal participation in criminal proceedings of the victim and the offender and others who may be affected as parties as well as the involvement of the community;

Recognising the legitimate interest of victims to have a stronger voice in dealing with the consequences of their victimisation, to communicate with the offender and to obtain apology and reparation;

Considering the importance of encouraging the offenders’ sense of responsibility and offering them practical opportunities to make amends, which may further their reintegration and rehabilitation;

Recognising that mediation may increase awareness of the important role of the individual and the community in preventing and handling crime and resolving its associated conflicts, thus encouraging more constructive and less repressive criminal justice outcomes;

Recognising that mediation requires specific skills and calls for codes of practice and accredited training;

Considering the potentially substantial contribution to be made by non-governmental organisations and local communities in the field of mediation in penal matters and the need to combine and to co-ordinate the efforts of public and private initiatives;

Having regard to the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Bearing in mind the European Convention on the Exercise of Children's Rights as well as Recommendations No. R (85) 11 on the position of the victim in the framework of criminal law and procedure, No. R (87) 18 concerning the simplification of criminal justice, No. R (87) 21 on assistance to victims and the prevention of victimisation, No. R (87) 20 on social reactions to juvenile delinquency, No. R (88) 6 on social reactions to juvenile delinquency among young people coming from migrant families, No. R (92) 16 on the European Rules on community sanctions and measures, No. R (95) 12 on the management of criminal justice and No. R (98) 1 on family mediation; 

Recommends that the governments of member States consider the principles set out in the appendix to this Recommendation when developing mediation in penal matters, and give the widest possible circulation to this text.

Appendix to Recommendation No. R (99) 19

I.          Definition

            These guidelines apply to any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the crime through the help of an impartial third party (mediator).

II.        General principles

1.         Mediation in penal matters should only take place if the parties freely consent. The parties should be able to withdraw such consent at any time during the mediation.

2.         Discussions in mediation are confidential and may not be used subsequently, except with the agreement of the parties.

3.         Mediation in penal matters should be a generally available service.

4.         Mediation in penal matters should be available at all stages of the criminal justice process.

5.         Mediation services should be given sufficient autonomy within the criminal justice system.

III.      Legal basis

6.         Legislation should facilitate mediation in penal matters.

7.         There should be guidelines defining the use of mediation in penal matters. Such guidelines should in particular address the conditions for the referral of cases to the mediation service and the handling of cases following mediation.

8.         Fundamental procedural safeguards should be applied to mediation; in particular, the parties should have the right to legal assistance and, where necessary, to translation/interpretation.  Minors should, in addition, have the right to parental assistance.

IV.       The operation of criminal justice in relation to mediation

9.         A decision to refer a criminal case to mediation, as well as the assessment of the outcome of a mediation procedure, should be reserved to the criminal justice authorities.

10.       Before agreeing to mediation, the parties should be fully informed of their rights, the nature of the mediation process and the possible consequences of their decision.

11.       Neither the victim nor the offender should be induced by unfair means to accept mediation.

12.       Special regulations and legal safeguards governing minors' participation in legal proceedings should also be applied to their participation in mediation in penal matters. 

13.       Mediation should not proceed if any of the main parties involved is not capable of understanding the meaning of the process.

14.       The basic facts of a case should normally be acknowledged by both parties as a basis for mediation. Participation in mediation should not be used as evidence of admission of guilt in subsequent legal proceedings.

15.       Obvious disparities with respect to factors such as the parties' age, maturity or  intellectual capacity should be taken into consideration before a case is referred to mediation.

16.       A decision to refer a criminal case to mediation should be accompanied by a reasonable time-limit within which the competent criminal justice authorities should be informed of the state of the mediation procedure.

17.       Discharges based on mediated agreements should have the same status as judicial decisions or judgments and should preclude prosecution in respect of the same facts (ne bis in idem).

18.       When a case is referred back to the criminal justice authorities without an agreement between the parties or after failure to implement such an agreement, the decision as to how to proceed should be taken without delay.

V.        The operation of mediation services

V.1.     Standards

 

19.       Mediation services should be governed by recognised standards. 

20.       Mediation services should have sufficient autonomy in performing their duties. Standards of competence and ethical rules, as well as procedures for the selection, training and assessment of mediators should be developed.

21.       Mediation services should be monitored by a competent body.

V.2.     Qualifications and training of mediators

22.       Mediators should be recruited from all sections of society and should generally possess good understanding of local cultures and communities.

23.       Mediators should be able to demonstrate sound judgment and interpersonal skills necessary to mediation.

24.       Mediators should receive initial training before taking up mediation duties as well as in-service training. Their training should aim at providing for a high level of competence, taking into account conflict resolution skills, the specific requirements of working with victims and offenders and basic knowledge of the criminal justice system.

V.3.     Handling of individual cases

25.       Before mediation starts, the mediator should be informed of all relevant facts of the case and be provided with the necessary documents by the competent criminal justice authorities. 

26.       Mediation should be performed in an impartial manner, based on the facts of the case and on the needs and wishes of the parties. The mediator should always respect the dignity of the parties and ensure that the parties act with respect towards each other.

27.       The mediator should be responsible for providing a safe and comfortable environment for the mediation.  The mediator should be sensitive to the vulnerability of the parties.

28.       Mediation should be carried out efficiently, but at a pace that is manageable for the parties.

29.       Mediation should be performed in camera.

30.       Notwithstanding the principle of confidentiality, the mediator should convey any information about imminent serious crimes, which may come to light in the course of mediation, to the appropriate authorities or to the persons concerned.

V.4.     Outcome of mediation

31.       Agreements should be arrived at voluntarily by the parties. They should contain only reasonable and proportionate obligations.

32.       The mediator should report to the criminal justice authorities on the steps taken and on the outcome of the mediation. The mediator's report should not reveal the contents of mediation sessions, nor express any judgment on the parties' behaviour during mediation.

VI.       Continuing development of mediation

33.       There should be regular consultation between criminal justice authorities and mediation services to develop common understanding.

34.       Member States should promote research on, and evaluation of, mediation in penal matters.