Criminal Mediation, an Instrument for Victim Visibility, a Component of Criminal Access to Justice

Abstract

Insofar as the intention is to provide legal protection, to speak of victims and of certain victims in particular, implies recalling the obscure past that enveloped them with regard to their invisibility in the criminal system as a whole. Society assumed the burden of the criminal response, through the expropriation of the victims’ rights by the State in the interests of that social safeguard. We have for centuries accepted that it was what society required –it was the conquest of civilization, ending “an eye for an eye and a tooth for a tooth” and the lex talionis. That was the best solution, although the outcome of these responses to that situation, owing to frustration, disenchantment and the inoperability, on occasions, of the model of social response, have prompted progress towards a more active role of victims in the criminal response and in the modulation of that response. In other words, to go beyond the preventive approach, and to incorporate resocialization or the restorative approach. This would open a wider range of possibilities that should not be exclusively considered as previously addressed or with a particular person in mind (prevention, society; resocialization, the accused; reparation, victims). Rather, they should all imply together that society can act and assume the burden in the face of criminally punishable conduct. Undeniable steps have been taken at national and international centres that have implied progress towards achieving victim visibility. And that progress has necessarily to include criminal mediation, which has been acquiring, over recent decades, an extended scope.

Keywords: restorative justice, alternative dispute resolution, ADR, victim, criminal law, criminal procedure, criminal mediation, new paradigm of justice

JEL Classification: k10, k41, K14