The right of access to restorative justice and mediation at the stage of criminal enforcement proceedings. Comments de lege lata and de lege ferenda
The subject of the article is a formal and dogmatic analysis of the right to mediation, which is part of the right of access to restorative justice. The aims of the article are determined by the structure of the content, with the limitation of considerations to the stage of executive proceedings in...
| Main Author: | |
|---|---|
| Format: | Article |
| Language: | Polish |
| Published: |
Ministry of Justice (Poland)
2022-12-01
|
| Series: | Probacja |
| Subjects: | |
| Online Access: | http://probacja.com/gicid/01.3001.0016.1257 |
| _version_ | 1797962880292749312 |
|---|---|
| author | Marek Dąbrowski |
| author_facet | Marek Dąbrowski |
| author_sort | Marek Dąbrowski |
| collection | DOAJ |
| description | The subject of the article is a formal and dogmatic analysis of the right to mediation, which is part of the right of access to restorative justice. The aims of the article are determined by the structure of the content, with the limitation of considerations to the stage of executive proceedings in criminal cases. First, the aim is to analyze the legal structure of the right of access to restorative justice and mediation. Secondly, the answer to the question of whether, in the light of EU and international law, there is an obligation for state authorities to ensure that the right to mediation is exercised, together with an analysis of its content. Third, the formulation of de lege ferenda proposals related to the establishment of the right of access to restorative justice and mediation.
Despite the position, formulated for years in the documents of the Council of Europe, that restorative justice and mediation should be a public service at every stage of criminal proceedings, it has not been established at the stage of executive proceedings. However, this does not result from a defective implementation of EU law, which does not impose an obligation to ensure the right of access to restorative justice and mediation services in areas where these services are not available, making EU Member States only guardians of the standards of services provided, and not guarantors of the possibility of implementing the right to use mediation.
De lege ferenda establishing the right of access to restorative justice and mediation would include the power to submit a request for mediation and the obligation of state authorities to create conditions enabling its implementation but not guaranteeing mediation.
The analysis of the right to access mediation, which has not been the subject of an explication in the doctrine so far, is to provide knowledge on the structure and potential directions of normative work, taking into account the regulations of EU law and documents of the Council of Europe related to the regulation of mediation proceedings at the stage of executive proceedings in criminal cases.
|
| first_indexed | 2024-04-11T01:19:39Z |
| format | Article |
| id | doaj.art-8a8c8719e2cf4a44bda6467991117ab5 |
| institution | Directory Open Access Journal |
| issn | 1689-6122 |
| language | Polish |
| last_indexed | 2024-04-11T01:19:39Z |
| publishDate | 2022-12-01 |
| publisher | Ministry of Justice (Poland) |
| record_format | Article |
| series | Probacja |
| spelling | doaj.art-8a8c8719e2cf4a44bda6467991117ab52023-01-03T13:31:33ZpolMinistry of Justice (Poland)Probacja1689-61222022-12-01412916410.5604/01.3001.0016.125701.3001.0016.1257The right of access to restorative justice and mediation at the stage of criminal enforcement proceedings. Comments de lege lata and de lege ferendaMarek Dąbrowski0Katolicki Uniwersytet Lubelski Jana Pawła II WPPKiAThe subject of the article is a formal and dogmatic analysis of the right to mediation, which is part of the right of access to restorative justice. The aims of the article are determined by the structure of the content, with the limitation of considerations to the stage of executive proceedings in criminal cases. First, the aim is to analyze the legal structure of the right of access to restorative justice and mediation. Secondly, the answer to the question of whether, in the light of EU and international law, there is an obligation for state authorities to ensure that the right to mediation is exercised, together with an analysis of its content. Third, the formulation of de lege ferenda proposals related to the establishment of the right of access to restorative justice and mediation. Despite the position, formulated for years in the documents of the Council of Europe, that restorative justice and mediation should be a public service at every stage of criminal proceedings, it has not been established at the stage of executive proceedings. However, this does not result from a defective implementation of EU law, which does not impose an obligation to ensure the right of access to restorative justice and mediation services in areas where these services are not available, making EU Member States only guardians of the standards of services provided, and not guarantors of the possibility of implementing the right to use mediation. De lege ferenda establishing the right of access to restorative justice and mediation would include the power to submit a request for mediation and the obligation of state authorities to create conditions enabling its implementation but not guaranteeing mediation. The analysis of the right to access mediation, which has not been the subject of an explication in the doctrine so far, is to provide knowledge on the structure and potential directions of normative work, taking into account the regulations of EU law and documents of the Council of Europe related to the regulation of mediation proceedings at the stage of executive proceedings in criminal cases. http://probacja.com/gicid/01.3001.0016.1257mediation after the sentenceright to mediationvictim-offender mediationrestorative justice |
| spellingShingle | Marek Dąbrowski The right of access to restorative justice and mediation at the stage of criminal enforcement proceedings. Comments de lege lata and de lege ferenda Probacja mediation after the sentence right to mediation victim-offender mediation restorative justice |
| title | The right of access to restorative justice and mediation at the stage of criminal enforcement proceedings. Comments de lege lata and de lege ferenda |
| title_full | The right of access to restorative justice and mediation at the stage of criminal enforcement proceedings. Comments de lege lata and de lege ferenda |
| title_fullStr | The right of access to restorative justice and mediation at the stage of criminal enforcement proceedings. Comments de lege lata and de lege ferenda |
| title_full_unstemmed | The right of access to restorative justice and mediation at the stage of criminal enforcement proceedings. Comments de lege lata and de lege ferenda |
| title_short | The right of access to restorative justice and mediation at the stage of criminal enforcement proceedings. Comments de lege lata and de lege ferenda |
| title_sort | right of access to restorative justice and mediation at the stage of criminal enforcement proceedings comments de lege lata and de lege ferenda |
| topic | mediation after the sentence right to mediation victim-offender mediation restorative justice |
| url | http://probacja.com/gicid/01.3001.0016.1257 |
| work_keys_str_mv | AT marekdabrowski therightofaccesstorestorativejusticeandmediationatthestageofcriminalenforcementproceedingscommentsdelegelataanddelegeferenda AT marekdabrowski rightofaccesstorestorativejusticeandmediationatthestageofcriminalenforcementproceedingscommentsdelegelataanddelegeferenda |