What is penal mediation ?
Penal mediation is an alternative measure to prosecution, just like penal composition. As such, it makes it possible to avoid the criminal trial. It was institutionalized by the law of January 4, 1993 and appears today in article 41-1 of the Code of penal procedure.
What is the objective ?
The objective of penal mediation is to reach an agreement between the victim and the perpetrator of an offence in order to repair the damage suffered by the victim or to resolve the dispute out of court. This measure is organized by the representative of the Public Prosecutor’s Office before any prosecution and requires the victim’s agreement. It is only valid for minor offenses.
When the Public Prosecutor considers that this measure is likely to allow for the repair of the damage suffered by the victim, the cessation of the disturbance to public order or the rehabilitation of the perpetrator, he appoints a penal mediator who convenes each of the parties to try to find an amicable solution, a solution that will be recorded in a report containing the terms of the agreement and the commitments of the parties.
Limits of penal mediation
Penal mediation does not extinguish the public prosecution, as the Court of Cassation ruled in a decision of June 21, 2011 (Cass. crim., June 21, 2011, n°11-80.003), confirmed by a decision of January 17, 2012 (Cass. crim., 10-88.226). Consequently, the execution by the offender of the measures prescribed under penal mediation does not prevent the Public Prosecutor from referring the same facts to the Criminal Court.
In which cases should penal mediation be considered ?
For example, the penal mediation procedure is used for neighborhood conflicts, for minor damage or for conflicts within a company.
It can also be implemented in the context of complaints of domestic violence, but only if the victim of such violence expressly requests it, pursuant to the law of August 4, 2014 for real equality between women and men.
The penal composition in case of non respect of the terms of the agreement
If the terms of the agreement, i.e. the obligations imposed on the person who has been the subject of penal mediation, are not respected, the Public Prosecutor can initiate a criminal trial or implement a penal composition.
The penal composition is also an alternative measure to prosecution and therefore avoids the need for a criminal trial. It was introduced by the law of June 23, 1999 and is included in article 41-2 of the Code of Criminal Procedure. Like penal mediation, it is a measure that must be decided by the Public Prosecutor and can only be implemented for offenses punishable by a maximum of 5 years imprisonment.
This procedure assumes that the offender recognizes the facts. The prosecutor then proposes one or more sanctions to the offender, which he or she can accept or refuse. If he accepts, the penal composition must be validated by the president of the court and then implemented. If he refuses or does not carry it out, the Prosecutor can then decide to hold a trial.
The law provides for the registration of executed penal compositions in the exécutées au criminal record, without them being taken into consideration for recidivism.
Unlike penal mediation, the penal composition extinguishes the public action.
Criminal mediation in criminal defense
The use of a lawyer for penal mediation is a right, the author of the facts subject to such a procedure can therefore be assisted.
When one of his clients receives a summons for criminal mediation, Alexandre-M. BRAUN informs him about the procedure, its interest and its effects..
He ensures that the mediation agreement respects his client’s interests and that the procedure is regular. He informs his client of the stakes involved in resorting to such a measure and its consequences, and ensures that it is the measure most favorable to his interests. He also verifies the regularity of the minutes recording the mediation.
The penal mediation in the defense of the victims
The victim of an offense subject to penal mediation can also be assisted by a lawyer, which will enable him to assert his interests in the best possible way.
In this context, Alexandre-M. BRAUN assists his client in drafting and filing a complaint if necessary, as well as throughout the criminal mediation procedure.. He ensures that the victim’s interests are respected during the drafting of the agreement with the mediator and the perpetrator, and does everything possible to ensure that his client’s prejudice is compensated under the best possible conditions. He ensures that his rights as a victim are respected.