Mediation in criminal cases

mediere-penalaMediation is an institution within the criminal trial, distinct from withdrawing a complaint or reconciliation ( sui-generis cause under Decision 9/17.04.2015 issued by ICCJ – The High Court of Cassation and Justice) that leads to the relieve of criminal responsibility and the end of the criminal trial for certain felonies while, for other felonies, it may represent an argument to make the Prosecutor give up the criminal prosecution proceedings and grant the perpetrator a 9 month deadline to fulfil his/her obligations undertaken through the Mediation Agreement.

A Mediation Agreement may be concluded in cases of felonies that are pursuable based on a prior complaint; in cases of felonies pursuable ex officio, for which reconciliation is possible; for any felonies punishable by fine or by prison sentences of up to 7 years and in the civil proceedings of any felony. Such Agreement may be signed either on the civil aspect only, on the criminal aspect only, or on both the civil and the criminal aspects of a felony, depending on the mutual will of the parties.

A Mediation Agreement concluded between the parties only on the civil aspect of a criminal trial, shall terminate all civil actions in that trial while, in terms of the criminal aspect, it shall serve as basis for the Judge’s decision who can order the punishment to be waived or delayed, who can order the conditional suspension of the execution of the sentence; who can grant mitigating circumstances that would lead to the reduction of the sentence or he/she can order the imprisoned person to be released on probation, before executing his/her entire sentence.

If, for felonies that are pursuable based on a prior complaint, the Mediation Agreement may be signed at any time before the Criminal Sentence becomes final, both on the criminal and the civil aspect of a trial, in cases of felonies where the parties’ reconciliation exonerates the perpetrator of criminal responsibility, such agreement may be signed, on the criminal aspect, no later than the day when the Intimation Document is read in Court (Decision no. 397/15.06.2016 issued by CCR – The Romanian Constitutional Court) while, on the criminal aspect, it may be signed at any time before the Criminal Sentence becomes final. For all other felonies, a Mediation Agreement may be signed at any time and it shall have the legal effects mentioned above.

In cases of individualisation of punishment, a Mediation Agreement may have impacts both on the decision to suspend the execution of the sentence and on the process of determining the length of such sentence – as it may underlie the Judge’s decision to suspend the execution of the sentence or to order a much shorter sentence.

A Mediation Agreement concluded after the perpetrator had been convicted, can still have effects on the criminal trial, effects related to the early release on parole and the judicial rehabilitation of the convict.

The mediation procedure can take place before, during or even after the criminal trial, as it is an informal and extra-judicial procedure. If the parties sign a Mediation Contract, they can ask the Court to suspend the trial for a maximum period of 3 months in order to try and reach an agreement through mediation.

If the Mediation Agreement is concluded before the criminal trial starts, the injured party may not file for the intimation of the criminal prosecution body or for the intimation of the Court as the case may be – for a second time in relation to the same acts, even if he/she is still within the legal deadline to do so. If the Parties to the Mediation Agreement fail to fulfil their obligations undertaken through such agreement, the injured party may file a new complaint within the same deadline, which shall be counted from the issuance date of the Mediation Procedure Completion Protocol, taking into account the time elapsed before the suspension.

If the Mediation Agreement is concluded during the criminal prosecution stage, the criminal trial shall not be initiated and the Mediation Agreement shall constitute an important argument to make the Prosecutor give up the criminal prosecution proceedings and grant the perpetrator a 9 month deadline to fulfil his/her obligations undertaken through the Mediation Agreement. If the Parties fail to fulfil their obligations undertaken through the Mediation Agreement, the Prosecutor may revoke the measure ordered.

If the Mediation Agreement is concluded after the start of the criminal trial or at any time during the judicial stage of the trial, but before the Court Ruling becomes final (the First Instance Court Trial or during the entire Appeal Trial) the Court shall acknowledge the content of the Agreement, it shall make it official under the law, and it shall order its enforcement, thus the perpetrator being acquitted.

The felonies where a Mediation Agreement relieves the perpetrator of criminal responsibility include:

Family abandonment (art. 378 – prior complaint)

Misappropriation (art. 238 – prior complaint)

Misappropriation by means of fraud against the creditors (art. 239 – prior complaint)

Threats (art. 206 – prior complaint)

Disloyal assistance and representation (art. 284 – prior complaint)

Sexual Assault (art. 219 – prior complaint)

Delayed Bankruptcy (art. 240 – prior complaint)

Fraudulent Bankruptcy (art. 241- prior complaint)

Criminal damages (art. 253 paragraph 1 and paragraph 2 – (prior complaint)

Revealing a professional secret (art. 227 – prior complaint)

Theft (art. 228 – reconciliation)

Aggravated theft (art. 229 paragraph 1 and paragraph 2 –reconciliation)

Theft committed for usage purposes (art. 230 – reconciliation)

Theft among family members committed by a minor from his/her guardian or by the person living with the injured party or being sheltered by the injured party (art. 231- prior complaint)

Fraudulent Mismanagement (art. 242 – prior complaint)

Harassment (art. 208 – prior complaint)

Sexual harassment (art. 223 – prior complaint)

Appropriation of an asset found or rendered to the perpetrator by mistake (art. 243 – reconciliation)

Deceit (art. 244 – reconciliation)

Insurance-related deceit (art. 245 – reconciliation)

Preventing someone from exerting their religious freedom (art. 381 –prior complaint)

Assault or other acts of violence (art. 193 – prior complaint)

Breach of the measures related to a minor’s custody (art. 379 – prior complaint)

Breach of Judicial Court Rulings (art. 287 paragraph.1 letters d and g – prior complaint)

Seduction (art. 199 – reconciliation)

Disturbance of possession (art. 256 – prior complaint)

Home usage disturbance (art. 320 – reconciliation)

Rape ( art. 218 – prior complaint)

Breach of private live (art. 226 – prior complaint)

Trespassing in a professional headquarters (art. 225 – prior complaint)

Breaching the secrecy of correspondence– art. 302 paragraph 1 – prior complaint)

Trespassing in a private home (art. 224 – prior complaint)

Involuntary bodily harm (art. 196 – prior complaint)

Domestic violence (art. 199 – reconciliation)

We must also specify that, mediators are considered persons with official duties, under Internal Note no. 59897/20.08.2012 issued by ANP, being allowed to hold meetings with inmates whenever necessary.

Sună Mesaj