Mediation, Reconciliation in Criminal Law, and Reconciliation Agreements in Criminal Procedure: Correlation of Legal Institutions in the Context of Criminal Law and Criminal Procedure Policy

Abstract

The article is devoted to a comprehensive analysis of the correlation between three interrelated but legally distinct legal institutions: mediation, reconciliation in criminal law, and reconciliation agreements in criminal proceedings.
The research gains particular relevance in the context of the adoption of the Law of Ukraine «On Mediation» of November 16, 2021, which created the legislative framework for the application of mediation in criminal proceedings and opened new opportunities for the development of restorative justice in Ukraine. The legal nature of each institution is examined in detail, revealing their essential characteristics and operational features. Mediation is considered as an extrajudicial voluntary, confidential, structured procedure that is a form of restorative justice and an instrument for achieving reconciliation between the victim and the offender. Reconciliation in criminal law is analyzed as a substantive legal ground for exemption from criminal liability under Article 46 of the Criminal Code of Ukraine, applicable in cases of first-time commission of criminal offenses or negligent minor crimes. Reconciliation agreements in criminal proceedings are examined as procedural documents concluded between the victim and the suspect or accused according to Articles 468-476 of the Criminal Procedure Code of Ukraine. The place of each institution in Ukraine’s contemporary criminal law and criminal procedure policy is determined. It is substantiated that these institutions reflect the trend toward humanization of criminal prosecution and expansion of alternative dispute resolution methods in criminal law conflicts. The research reveals the complex nature of interrelationships between the analyzed institutions. The necessity for clear differentiation between procedure (mediation), result (reconciliation), and legal formalization of agreement (reconciliation agreement) is emphasized.
A critical analysis of the impact of the Law of Ukraine «On Mediation» on the development and application of the studied institutions is conducted. Both positive aspects of the new legislation and problematic issues are identified. Among problematic issues highlighted are: the absence of detailed regulation of mediation specifics in criminal proceedings, uncertainty regarding the status of mediation agreements.
The potential of mediation as a form of restorative justice and its role in achieving balance between the interests of the victim, the accused, and the state is emphasized.