Mediation in juvenile justice: a perspective assessment

Savchik Kseniia Vladimirovna Postgraduate student; Faculty of Law; Herzen Russian State Pedagogical University 198328, Russia, Saint Petersburg, Peterhof highway, 11/21, sq. 3 kseniya.savchik@mail.ru

The second half of the twentieth century was marked by the development of the restorative justice system in terms of the formation of new trends in criminal policy. Restorative justice should be considered as a consequence of such trends as the humanization of criminal responsibility and punishment, liberalization, rethinking the importance of private interest in public law, improving existing and introducing new differentiated forms of criminal procedure.

The juvenile restorative justice system has been actively used in many developed countries. The legislation of the countries that have introduced this institution in the field of law enforcement, in some manifestations, considers it as an alternative to the criminal punishment of minors, which minimizes cases of real contact with the criminal repressive apparatus.

The restorative juvenile justice system is based on the philosophy of age protection, where the leading element is not punishment, but the achievement of the child's well-being. For example, based on the restorative justice system in various countries, reconciliation programs for offenders and victims have been developed and put into practice (USA, Canada, Chile, individual European countries, etc.), family conferences in New Zealand, etc.

When implementing such programs, the principle of the inevitability of punishment is actually replaced by the principle of making amends for harm and compensation for the damage caused. The absence of the fact of bringing a minor to criminal responsibility is due to the will of the injured party, and, as a rule, this happens if the violator actually takes actions to make amends for the damage caused and admits guilt for what he has done.

In modern Russian criminal proceedings, the interaction of the victim and the guilty minor is minimized, especially at the stage of the preliminary investigation. It should be noted that reconciliation of the victim with the person who committed the crime (we mean the institution enshrined in Article 76 of the Criminal Code of the Russian Federation) is actually implemented only during judicial review of the case.

In such a situation, reconciliation of the parties at the pre-trial stages becomes impossible, and the issue of termination of the criminal case (including on the basis of Article 76 of the Criminal Code of the Russian Federation) is resolved in court.

Considering the Russian criminal process in relation to bringing to justice persons who have committed crimes underage, it can be noted that it is based primarily on the punitive paradigm, but at the same time, the Russian legislature, along with the general provisions allowing for exemption from criminal liability and punishment, provides for special legal norms that can be considered as an element of the restorative justice system. For example, as an alternative to the criminal punishment of minors, it is possible to use compulsory educational measures.

As E.A. Antonyan notes, the application of such measures is based on the principle of persuasion, the effect of which is achieved through conversations with a minor; comprehension by the guilty person of the crime committed and the negative consequences that have arisen; suggestion of the need to review their behavior and the inadmissibility of repeated commission of illegal acts ^{[1, p. 113]}.

Taking into account the assessment of the identity of the juvenile offender and the category of the unlawful act committed, the court may conclude that it is advisable to release him from criminal liability and punishment by applying compulsory educational measures to him, as specified in the criminal law.

Compulsory educational measures for their intended purpose, as follows from their content, are aimed at correcting the personality of a minor offender ^{[2, p. 20]}. The application of such measures is not associated with imposing on a minor such significant restrictions that a guilty person may undergo when sentencing him. By itself, the introduction of compulsory educational measures into Russian criminal law indicates some adherence to international trends in the humanization of criminal responsibility and punishment of minors.

At the same time, in other studies of the author, it has already been noted that the current measures do not fully ensure the effectiveness of the criminal procedure and executive system in the administration of juvenile justice, and the courts are too focused on an individual approach when sentencing or deciding whether to release from criminal liability, which ultimately leads to excessive differentiation. the applied criminal measures of influence in cases of committing similar crimes ^{[3, p. 39]}.

In scientific circles, when analyzing the possible reform of the juvenile justice system, researchers raise the question of the possibility of using mediation procedures as one of the alternatives to the further development of the Russian juvenile justice system. The study of this issue was carried out by such authors as L.A. Shestakova, L.V. Yakovleva, E.N. Tsvetkova, E.N. Senina, V.V. Yurkov, D.V. Galkin, L.M. Karnozova and others. Despite the reflection of this issue in the scientific literature, the positions expressed are still characterized by a certain inconsistency, which in itself justifies the need to continue research on this issue. The methodology used in this study is based on methods such as analysis, synthesis, induction and deduction, which made it possible to describe specific features in the legal regulation of the mediation institute as a whole, formal legal and systematic methods were used to distinguish the main legal terms and to formulate their own conclusions and conclusions.

First of all, it should be noted that mediation is not a new institution for the Russian legal reality (if we do not talk about the sphere of criminal procedure regulation). Currently, mediation procedures are implemented in accordance with the provisions defined by Federal Law No. 193-FZ of July 27, 2010 "On an Alternative Dispute Settlement Procedure involving an Intermediary (Mediation Procedure)". However, as follows from Part 4 of Article 1 of this law, the mediation procedure can be used to resolve disputes considered in civil, administrative and arbitration proceedings.

The lack of mention of the possibility of mediation in criminal proceedings leads to discussions. For example, L.M. Karnozova points out the need to extend the operation of this law to the criminal process, including juvenile justice ^{[4, pp. 11-14]}.

In turn, it is not entirely correct to say that the practice of mediation dispute resolution, despite the lack of relevant guidance in a specialized legislative act, does not even partially apply to juvenile offenders. Thus, by Decree of the Government of the Russian Federation No. 1430-r dated July 30, 2014, the Concept of developing a network of mediation services until 2020 in order to implement restorative justice for children, including those who have committed socially dangerous acts but have not reached the age of criminal responsibility, was approved. As stated in the provisions of the Convention, mediation and the restorative approach act as effective regulators for solving the tasks of preventing illegal behavior of minors, but their use in the Russian legal system is fraught with certain difficulties, which are primarily due to the weakness of civil society institutions, the practice of carrying out reforms exclusively "from above", as well as the lack of systemic financial support for the implementation of initiatives.

The concept envisioned the widespread introduction of a two-tier system of mediation services:

- Federal level with its parent organization, the Federal Center for Mediation and Restorative Justice Development (this center is currently functioning);

- regional and local, based on the secretaries of the commissions for juvenile affairs and protection of their rights, as well as teaching staff.

Despite the development of certain techniques and provisions, the actual use of the restorative justice system in the form of mediation procedures for juvenile offenders in the Russian Federation is difficult. First of all, this is due to the lack of clear legal regulation of the mechanism for implementing the mediation procedure at the legislative level. However, it cannot be said that mediation programs are not being implemented at all. E.N. Senina analyzed the results of the activities of territorial reconciliation services during her dissertation research, indicating hundreds of completed procedures since the beginning of reconciliation programs. The author points out the need to expand the relevant practice and develop a system of legislative support ^{[5, p. 4]}.

Returning to the substantive discussion, let us consider the existing positions on this issue. A.N. Ostrovsky and V.A. Pimonov believe that mediation can have a positive impact on reducing the number of offenses committed repeatedly by minors ^{[6, p. 111]}.

A.L. Santashov also adheres to the position that mediation should be perceived as one of the leading directions of Russian criminal policy, and its implementation can be carried out through the creation of special conciliation commissions and the elimination of existing legal obstacles ^{[7, p. 34]}.

E.V. Tsvetkova approaches this issue with limitations. In her opinion, this procedure can be applied to minors in cases where the harm caused by a crime of minor or moderate severity is mainly of a material nature. The author suggests using an inspector for juvenile affairs as a mediator, who should be given the authority to issue a decision on the refusal to initiate criminal proceedings in connection with the approval of a mediation agreement with the consent of the prosecutor. That is, in this case, mediation is applied at the stage of initiation of a criminal case ^{[8, p. 63]}. L.A. Shestakova also writes that this procedure should be implemented through the refusal to initiate criminal proceedings ^{[9, p. 125]}.

E.N. Senina is considering the possibility of using mediation in reconciliation with the victim under Article 76 of the Criminal Code of the Russian Federation. Additionally, the author points out the need to apply such a procedure to persons who have committed crimes of any category for the first time, with the exception of particularly serious ones. In relation to serious crimes, the implementation of the procedure, according to the researcher, is possible in cases of crimes that are not related to causing serious harm to human health or death ^{[5, pp. 20-21]}.

There are also other points of view regarding the mediator's personality. A.M. Ponasyuk points out that a mediator can be a lawyer acting in the interests of both sides of the conflict ^{[10, p. 11]}. Such an implementation seems very promising to A.S. Mikhailova ^{[11, p. 44]}. G.S. Sheremetova believes that mediation can function as part of a system of free legal aid ^{[12, p. 11]}.

The issue of applying mediation to minors who repeatedly commit illegal acts is also very controversial.

E.V. Tsvetkova believes that this procedure can be initiated in cases of the initial commission of a criminally punishable act ^{[8, p. 63]}, V.V. Yurkov, on the contrary, considers it possible to implement it in case of repeated facts of illegal behavior, justifying this by the criminological phenomenon of "spontaneous law-abiding behavior of a person" ^{[13, p. 121]}.

From our point of view, the points of view described above certainly deserve attention. At the same time, we believe that even if a mediation agreement is potentially approved, based on the requirements of article 140 of the Code of Criminal Procedure, there are procedural grounds for making a decision to institute criminal proceedings. Ignoring the requirements of the law or making appropriate additions to clarify the list of grounds for refusing to initiate criminal proceedings will only increase the time required for verification measures to be implemented after receiving a crime report in various forms. Moreover, we believe that the authorized person, even if there is a potential possibility of conducting mediation, has a reason and a basis for initiating criminal proceedings, since minors have indeed committed an act that has the characteristics of a criminal offense.

The conclusion of a mediation agreement, when considering it as an alternative to criminal punishment, should be considered (obviously, with appropriate legislative changes) as one of the grounds for termination of criminal proceedings and exemption from criminal liability, that is, the implementation of this institution is possible, according to the author, as in the situation with compulsory educational measures - at the stages of preliminary investigation and judicial review of cases in cases of minor or moderate crimes committed for the first time.

At the same time, the author, although considering the possibility of using mediation procedures in relation to minors, nevertheless believes that reconciliation of a juvenile offender with a victim can be carried out within the framework of art. 76 of the Criminal Code of the Russian Federation.

Reconciliation with the victim as a basis for exemption from criminal liability is applied to juvenile offenders, provided that they make amends for the harm caused by the unlawful act and, as noted earlier, can be considered as an element of the restorative justice system. Along with the possibility of using coercive measures of educational influence, the Russian legislator not only provided for an alternative, which consisted in releasing minors from criminal liability and punishment, but also in certain cases fixed the need for compensation for harm caused to the victim. In such a situation, we believe that the current legislation provides for a sufficient number of options, which in their content are alternatives to the criminal punishment of minors.

Continuing to study this issue, we believe that the introduction of mediation procedures as an alternative to criminal punishment for persons who have committed crimes under the age of a minor and are subject to criminal liability is quite difficult due to the following objective reasons.

1. The Russian legislature has taken into account age-related characteristics when prosecuting crimes, depending on the type and category of the act, which in itself serves as a preventive measure, and it has already provided for measures that are actively used in law enforcement practice and allow for the release from criminal liability and punishment of not only minors, but also adults. In particular, the institution of reconciliation with the victim and individual coercive measures of educational influence can be considered part of the restorative justice system.

2. The proposals voiced in the scientific literature, although they seem quite promising and correspond to the trends of humanization and liberalization of criminal responsibility and punishment, however, in their content, most of them contradict the provisions of criminal procedure legislation.

The ideas according to which the initiated mediation procedure in relation to a minor can serve as a basis for refusing to initiate criminal proceedings, in our opinion, are not consistent with the general principles of criminal and criminal procedural legislation. First of all, in this case there are no grounds for refusing to institute criminal proceedings provided for in Article 24 of the Code of Criminal Procedure, and there is also a reason and a basis for making the opposite procedural decision – making a decision to institute criminal proceedings.

3. The development of criteria for persons to whom mediation procedures may be applied as an alternative to criminal punishment is associated with the possibility of violating legally established principles of criminal law, primarily the principle of justice. Firstly, not all criminal cases involve such a procedural participant as the victim, who is an individual. Based on the essence of the mediation procedure, reconciliation is possible with an individual, and the implementation of this procedure, where a representative of a legal entity will act on behalf of the injured party by proxy, is unlikely to meet the goals of mediation itself. In this case, there is obviously an imbalance in terms of equality of all before the law. Secondly, given that the mediation procedure should be based on a certain dispositivity of the parties (taking into account a certain public law order due to the established legal relations between the parties), mediation will be solely a matter of discretion, depending on the will of the injured party, since the establishment of the mandatory mediation procedure itself cannot fully take into account the interests of participants in criminal proceedings.

Adhering to the position that the mediation procedure can definitely have a positive impact on the lawful behavior of juvenile offenders, we believe that the Russian legislature should continue to develop a special system of legal regulation regarding the operation of this institution in cases of crimes committed by persons who have not reached the age of criminal responsibility. At the same time, the mediation procedure, taking into account the fact that the minor has not reached the age of criminal responsibility, will not be carried out within the framework of criminal and criminal procedure legislation.

In such cases, an additional positive effect can be achieved from the interaction of the minor with the victim, which will lead to a decrease in repeated cases of illegal behavior among persons under the age of eighteen, that is, additional prevention of deviant behavior of minors will be carried out. The implementation of mediation procedures, as indicated in the Concept, is possible through the operation of a two-tier system of specialized bodies.