Victim–offender mediation: which offences, and what accepting means

A call or a notice from the prosecutor's office saying that the file has been referred to mediation leaves most people wondering whether accepting amounts to admitting the accusation. Victim–offender mediation (uzlaştırma) is neither an admission of guilt nor a withdrawal of the case. It is a separate route that the law provides for a defined group of offences.

Which offences are covered

The basic rule: offences that can only be investigated and prosecuted upon complaint fall within mediation. On top of that, the law lists further offences that are covered even though they do not depend on a complaint. Those seen most often in practice are:

• Intentional injury in its basic form, and where the effect can be remedied by simple medical intervention
• Injury by negligence
• The basic form of threat that depends on a complaint
• Violation of the inviolability of the home
• Certain offences against property, such as theft, fraud and abuse of trust
• Insult

The exclusions are equally clear. Offences against sexual inviolability cannot go to mediation, even where they depend on a complaint. Likewise, where an offence within the scope of mediation has been committed together with an offence outside it, the mediation provisions do not apply.

Whether a given offence is on the list can turn on which paragraph the investigation is being run under. One paragraph of an article may be covered while another is not.

How the process runs

Mediation is started by the prosecutor's office during the investigation, and by the court once the case has reached the prosecution stage. The file goes to the mediation bureau, which appoints a mediator registered with the Ministry of Justice. Mediators have studied law, have completed training, and are independent of the parties.

The mediator puts the offer to the suspect and to the victim separately. A short period is given for a reply, and if you do not state your decision within it the offer counts as refused. Staying silent does not mean acceptance.

The discussions are confidential. If no settlement is reached, what was said during mediation cannot later be used as evidence in the case file. That safeguard exists so that the parties can speak freely.

If you accept

Where the parties reach agreement, a settlement document is drawn up. The parties themselves decide what it contains: payment of a sum, repair of the loss, an apology, or work for a public benefit. An obligation of that kind is not compulsory — the parties may simply record that they have settled.

If the obligation is performed straight away, the outcome during the investigation is a decision that there are no grounds for prosecution, and the file closes. At the prosecution stage, the court orders that the case be dropped. In neither case does a conviction arise that goes on the criminal record.

Where performance has been agreed for a later date or by instalments, the file is held. If the obligation is not performed, the settlement document is enforceable, so the party owed can go to enforcement proceedings on the basis of it.

If you refuse

Where no settlement is reached, the investigation carries on from where it left off. Refusing is not held against you and does not increase the sentence. Mediation is attempted once in the same file; an unsuccessful attempt is not repeated. If the parties later settle between themselves and inform the court, that statement will be taken into account.

If you are the victim, accepting a settlement may remove your right to claim damages beyond the amount agreed in the settlement document. It is worth clarifying the scope of that document before signing it.

This article is for general information only and does not constitute legal advice on any specific matter. The list of offences covered by mediation is updated as legislation changes.