1. Mediation in Polish criminal procedure¹

Mediation was formally introduced into the Polish criminal law system in 1997 and came into force on 1st September 1998. At first, mediation sessions were conducted only at the stage of preparatory proceedings and at the very early stage of judicial proceedings (during the preliminary judicial control over the indictment). In 2003, however, the law was changed in favor of the mediation process. Special legal regulations concerning mediation were introduced into the general part of the Polish Code of Penal Procedure (article 23). Due to this amendment, mediation became admissible at every point of criminal procedure. Moreover, to promote this form of resolving criminal cases at the preparatory stage, time necessary to prepare and conduct a mediation session was excluded from the statutory limited amount of time prescribed for the police (or prosecutors’) investigation. On 13th June 2003, the Ministry of Justice issued legally binding regulation on conducting the mediation process. According to provision 11 of this regulation, a mediator - immediately after receiving the referral decision – is obliged to:

1. contact the victim and offender (suspected or already formally accused) to appoint times and places of individual pre-mediation meetings;

2. organize pre-mediation individual meetings with each of the parties in order to inform them about the idea of mediation, rules of mediation process and their rights;

3. conduct victim-offender mediation sessions “face-to-face”;

4. help parties in writing down terms of negotiated agreement and monitor its fulfillment.

It needs to be underlined that “face-to face” meeting of the victim and offender is a procedural requirement of Polish criminal procedure - mediation cannot be conducted in a form of shuttlediplomacy!

Case Referral

Cases can be referred to mediation by:

• prosecutors – at the stage of preparatory proceedings;

• police officers – at the stage of preparatory proceedings;

• courts – at any level of judicial proceedings (up to the final judgment);

• courts – in cases prosecuted on private accusation (on the motion or consent of both parties) instead of conciliatory proceedings;

• penitentiary courts (or directors of penal institutions) – at any point of serving the sentence of imprisonment (no matter for how long the offender was convicted);

• executory courts – at the stage of executory proceedings.

Impact of mediation on the criminal court final judgment

Positive outcomes of the mediation process may influence the court to pass one of the following decisions:

• conditional discontinuance of a criminal proceeding;

• unconditional discontinuance of a criminal proceeding (e.g. when there is no or minute social harmfulness of an act);

• judgment upholding terms of reached mediation agreement (e.g., reparation of damages, financial restitution, compensation of moral injury, personal or community service, offender obligation to change behavior, to undertake anti-drug or anti-alcohol therapy, to apologize to the victim);

• sentencing judgment without a trial (voluntary submission to penalty as a side-effect of mediation process).

II. Mediation in practice²

Statistical data on the frequency of use of mediation in criminal cases in the period from 1 September 1998 to 31 December 2003, provided by the Ministry of Justice:

In almost 60% of cases referred to mediation, the parties managed to reach an agreement, and only 34% of them finished with nothing. In 6% of cases primarily referred to mediation, sessions did not occur due to different reasons (e.g.: court withdrew the referral decision, one of the parties did not agree to participate or there were no possibilities to contact her).

Mediation is frequently used to dissolve criminal conflicts concerning offenses against family and guardianship, life and health, honour and bodily inviolability, while crimes against property are still more often decided in traditional judicial proceedings.

Court decisions made after the mediation procedure (1999).

1 Based on: Agnieszka Rękas: Mediacja w polskim prawie karnym. Ministerstwo Sprawiedliwości. 2004. (Mediation in Polish Criminal Law System. Ministry of Justice. 2004)

2 Data based on yet-unpublished findings of Marzena Kruk: Funkcjonowanie instytucji mediacji w sprawach karnych. Instytut Wymiaru Sprawiedliwości Polskiej Akademii Nauk (Functioning of mediation procedure in criminal cases. (Polish Academy of Sciences)

3. the total number doesn’t include the number of cases with no full data available

Dr. Czwartosz has also prepared an article on the qualifications and training of mediatiors under the new laws and guidelines. This article is available at RJOnline at the following link: Qualifications of Mediators Between Victims and Offenders in Poland

 November 2004