ANATOLY KUCHERENA: “MEDIATION IN CRIMINAL CASES IS POSSIBLE”

Within the framework of the Round Table on the topic "Is mediation possible in criminal cases", the participants of the event assessed how complicated the application of the procedure in more difficult cases is and how mediation might help to improve the legal field in Russia.

At the beginning of the conference, it was noted that mediation in Russia is still at the start, many business representatives do not even know about such an option as a pre-trial settlement. Problems are usually resolved in court, but things can be much easier.

Anatoly Kucherena, the head of the Mediation Center under the Commissioner for the Protection of the Rights of Entrepreneurs of Moscow, noted that with the help of mediation, conflict situations can be resolved faster. It is enough for a notary, who will assure that the parties were present and agreed on something, to be present at the procedure - such a decision can be equated with a writ of execution.

“Of course, this is difficult to do in criminal cases. But as far as civil relations are concerned, mediation is quite effective”, said Anatoly Kucherena.

The speaker also noted that today, we need to be bolder and not to be afraid to conduct conciliation procedures, even if it concerns criminal cases. Lyudmila Karnozova, a member of the European Forum for Restorative Justice, recalled that mediation in criminal cases is not often discussed in Russia.

“The Russian legal system does not have a law on mediation in criminal cases, but at the same time, there is mediation in criminal cases”, said Lyudmila Karnozova.

However, somewhere it is carried out openly, and somewhere it is veiled. In those regions that have mediation centers, the courts can transfer criminal cases to them. As an example, Lyudmila Karnozova named the Lipetsk region, where the number of examples of conciliation procedures in criminal cases is growing every year - in 2019, the court sent 345 criminal cases to mediation. Moreover, agreements were reached in 302 processes.  

Svetlana Tonevitskaya, a lawyer and mediator from Ulan-Ude, spoke about a case when 150 people, including 13 children and 5 pregnant women, were infected with salmonellosis in a cafe. As a result, the entire infectious diseases hospital was filled with patients, and a great public stir occurred in the society.

“People suffered, and I understood that I would not be able to conduct direct mediation. I contacted the owners of the cafe, entered into an agreement with them for the provision of legal services with the right to conclude amicable agreements. As a result, the harm-wielders were ready to compensate for moral damage - taking into account the loss of earnings during the treatment, the cost of medicines themselves, everything was discussed with individually”, Svetlana Tonevitskaya said.

As a result, the victims received payments from 3 to 85 thousand rubles, and the criminal case was dismissed - a fine was imposed on the cafe.

The retired federal judge and the honored lawyer Sergei Pashin noted that now it is necessary to push for the amendments to the draft law on mediation, which will be aimed at supporting, but not at revamping of what is already done. He also noted that there is no need to demand anything that will require spending from the federal budget - in this case, the process will be dragged on, right up to the "burial of the idea."

“All our amendments do not require spending from the federal budget and can be relatively painless. It is clear that participation in the reconciliation program is not equal to recognizing a person's guilt”, said Sergei Pashin.

Pashin recalled that it is necessary to achieve and change departmental performance indicators - they should be aimed at the fact that mediation is beneficial, and termination of the case is “not an enemy of work”.

“I dealt with cases of murders, gangs, “black” realtors, but then they started to give me cases under Article 318, Part 2 - violence against police officers, from 5 to 10 years in prison. The prosecutor insisted on an 8- year imprisonment for a broken finger of policeman. Then I invited the prosecutor and a lawyer to my office and explained that if the policeman is satisfied, we will take this into account. And if not, then – you know how it happens. I was balancing on the verge of challenging”, shared Sergey Pashin.

In this case, the court could be accused of having expressed its position in the case before the sentencing. For this reason, Pashin believes that it is necessary to change the requirements for a judge, including ethical ones, so that a representative of justice could freely communicate with the parties of the process. At the end of his speech, Sergei Pashin noted that the affairs of entrepreneurs, mass catastrophes and environmental tragedies should be dealt with separately.

“It is worth noting the cases of insulting the feelings of believers. How many believers were offended, did they somehow show themselves? In the verdict, the judge writes that he observed the behavior of the public and saw that everyone was insulted. This was written about the Sakharov’s Center case”, said Pashin.

He noted that such situations do not require mediation, but require some other ways of working. However, at this stage, the speaker asked to support the draft law of the first step, which needs to be discussed.