Application of the mediation procedure in the criminal process of Austria, Germany and Switzerland

Abstract

The article analyzes the criminal procedure legislation and regulations governing the settlement of criminal disputes through mediation procedures in the Federal Republic of Germany, Austria and Switzerland.

It is stated that mediation has a very long history. It existed even when prisons did not exist and was accepted in some communities as the only means of resolving conflicts between the parties. At present, reconciliation programs are successfully operating in Norway, Finland, the United Kingdom, Austria, Germany, and France and are enshrined in national law.

In Germany, the institute of mediation was established with the adoption of the Law "On Compensation to Victims" of May 11, 1976 and the Law "On Protection of Victims" of December 18, 1986. With the adoption of the latter, the institute "Täter-Opfer Ausgleich" was established by law - "reaching a compromise between the guilty person and the victim" and making appropriate amendments to the Criminal and Criminal Procedure Codes. the mediator must ensure that the parties understand the principles and course of the mediation process and the fact that they voluntarily participate in the mediation. The mediator is equally obligated by all parties. It facilitates communication between the parties and ensures that the parties are involved in mediation in a proper and fair manner. He can negotiate separately with parties from all sides. Third parties may be involved in mediation only with the consent of all parties.

Austrian lawyers consider the voluntary participation of the conflicting parties in the out-of-court process to be essential elements of mediation; neutrality and impartiality of the mediator; attempts to resolve the conflict quickly and unbureaucratically; the suitability of the mediator to act as a "legal expert".

In Switzerland, on the other hand, mediation is widely used in civil, family, labor and other disputes, but is not enshrined in the country's criminal procedure law, although some private mediation associations operate in some cantons at pilot level. The confederation also does not have a Law on Mediation.

It is concluded that in different countries such reconciliation processes take place in different ways, mostly in a positive aspect. Although, for example, such a successful economically developed country as Switzerland recognizes mediation as inexpedient and economically unjustified. In Germany and Austria, on the other hand, conciliation procedures have been used effectively since the end of the last century, when the relevant regulations governing the mediation procedure had not yet been adopted.