A Mediation Model From Turkish Criminal Justice System: A Critical Reflection On Current Situation
Mualla Buket SOYGUT ARSLAN
Penal mediation today, which is stemmed from common law countries, is one of the global events which inevitably affects most of the law systems including civil law. It is important to practice mediation justly since it may incur some risks particularly for due process rights. The main point to be considered is that the efforts which are being made for healing and strengthening the rights of victims should not be transformed into the violation of the accused’s rights acquired after gruelling fights in the past. The balance between the interests of both victim and accused (and also society) should be provided. The Turkish criminal justice system which is mainly based on the civil law system and in which the judicial actors do not know so much about restorative justice & alternative dispute resolution concepts, should include basic safeguards particularly about confidentiality of process, impartiality of the mediator and juvenile justice. Otherwise the mediation may cause undesirable results contrary to its restorative goals.
Turkish Criminal Justice, Restorative Justice, Alternative Dispute Resolution, Victim-Offender Mediation, Penal Mediation.
1. INTRODUCTION
Turkish legislators put a mediation procedure into force within the context of total amendment in criminal legislation in 2005, following the progress of restorative justice concept throughout the world. This article assesses the implementation of mediation as an alternative dispute resolution method in Turkish criminal justice. It addresses difficulties in harmonizing mediation within Turkish legal system which is based on civil law.
The main purpose of this article is to evaluate the appropriateness of the practice of mediation with both the general principles of mediation and Turkish criminal justice system itself. To achieve this goal, initially brief information about mediation is given. The role of the victim and the reasons of adopting mediation into the Turkish law, legal base, organizational structure, procedure and legal consequences of mediation are then provided. The article concludes by pointing the critical aspects of current legislation and practice in the discussion part. Especially, a great care is taken to the problems related to the due process rights.
2. GENERAL BACKGROUND ABOUT MEDIATION IN CRIMINAL JUSTICE
Criminal justice is one of the most important fields of justice due to the potential effect of punishment on the individual and the corruptive effects of crime in society.1 The instruments of criminal justice systems need to be modernized. Reform in law and justice is not a coincidental, abstract or unearthly thing; it is an outcome of a demand. The 21st century could not respond to crime with only penalties, retributive justice instruments. The alternative measures and sanctions seemed also not sufficient to reduce delinquency and to ensure justice. Furthermore, victims of crimes were neglected from the date the state took over the authority of punishing.2 As denoted by Umbreit, the concept of “retributive justice” accepted the crime as a violation of the rules; the state as a victim and as a party of the criminal conflict. It was focused on fixing blame. The victim was on the periphery of the process and the offender had no role in resolution.3
