It is in the court where parties to a conflict learn about mediation for the first time. The judge informs the parties about their right to mediation while enumerating all of the procedural rights of the parties. The mediation rooms in courts as well as mediators on duty in criminal courts largely contribute to that. Parties can agree to mediation at any moment in a trial until the judge retires to the deliberation room. The parties may also conclude a mediation agreement at the stage of appeal.
However, a number of problems arise even in this case.
The time limits remain an important problem. The average time for the case examination in a court is one month. Unlike in the civil proceedings, the conclusion of the mediation agreement does not constitute a ground to suspend the proceedings. This of course impedes compensation and practically excludes such a form of compensation for damage as earning the necessary sum of money by a defendant.
Furthermore, the issue of compensation for damage to a victim is not the only subject of discussion in the framework of a mediation procedure.
A mediator together with the parties analyses the reasons for committing an offence, facilitates discussion on what is to be done to prevent such a situation in the future and works with the victim to avoid effects on the victim’s behaviour and emotional well-being.
A main sticking point in the development of mediation in the criminal justice system of Kazakhstan turned out to be a misunderstanding of the scope of its application. Many criminal justice officers think that mediation can only be applied as a ground for exemption from criminal liability.
However, this is a misunderstanding. The Code of Criminal Procedure of the Republic of Kazakhstan foresees that after reviewing a civil claim in a criminal case the court can take a decision to approve a settlement agreement or a mediation agreement and terminate the proceedings (para. 5 of Article 170).
The legal nature of criminal offences and civil claims arising from them is different: namely, civil law disputes arising from the fact of causing harm and damage by a criminal offence are not criminal disputes but civil ones. Therefore, in this case the application of mediation in a civil lawsuit filed during criminal proceedings is subject to civil procedural standards.
Thus, when resolving a civil lawsuit in a criminal case, mediation can be conducted regardless of the seriousness of the crime. Although, if this is a crime category to which Article 68 of the Criminal Code is not applicable, a mediation or an agreement cannot be considered as a ground for exemption from criminal liability on the ground of reconciliation.
At the same time, if in a civil suit in the framework of a serious crime or of a crime of minor or medium gravity, where a victim does not agree to reconcile, but the damage is compensated, a judge must take this fact into account as a mitigating circumstance.
Furthermore, when parties to a conflict come to a decision on compensation for damage according to an instalment plan and a relevant article of the Criminal Code contains a criminal sanction alternative to deprivation of liberty the court can approve such an agreement by imposing such an alternative sanction. In this case the offender is put on probation.
The court can impose obligations to fulfil the terms of a mediation agreement (to pay compensation) in the framework of probation. In the case of a failure to fulfil these obligations, the court can replace a sanction by changing it to imprisonment. However, due to the punitive bias of the Kazakhstani justice, this practice is still available only in isolated cases and only in East Kazakhstan.
Here is a small example that demonstrates the rejection of restorative approaches by the punitive justice system. A theft from a residential building was committed. The total sum of money stolen was 260,000 tenge (approx. 617 euros). In the previous ten years a victim, Mrs O., had been robbed three times and the damages were never paid to her. On two previous occasions she filed claims for damages; the claims were not satisfied and the criminals were imprisoned. In prison there is no possibility of earning money; so the offenders could not make any compensation. After their release they avoided execution of the judgment at all costs and an opportunity legally to recover money from them was actually lost.
The mediators passed the papers to the defendant who was in the detention facility. Then he wrote a request asking for a professional mediator. Afterwards the mediator contacted the victim. It should be noted that the mediation could not be conducted in the detention facility and so the provisions of the agreement between the parties were elaborated individually with each of the parties. During the mediation procedure, the victim and the offender, Mr V., agreed that he would pay her 30,000 tenge (62 euros) of compensation per month. The offender presented a plan stating where and how he is going to earn this money. His employer was ready to provide assurances that he would hire him with a proper salary. The sanction of the article prohibiting theft provides for both restriction of liberty and imprisonment. The court accepted a mediation agreement, approved it but sentenced the offender to imprisonment practically depriving him of the opportunity to compensate the damage in accordance with the agreement. The interests of the victim who also requested the court to put the offender on probation obliging him to fulfil the terms of the agreement were ignored.
The victim was left without compensation for the third time while the offender could not use the possibility of rehabilitation.