Conciliation and mediation in the light of criminal law

In Panama, Law 63 of August 28, 2008adopt Prosecutorial criminal system, which is a procedural order whose purpose is to resolve the criminal offense in the shortest possible time, whereby the parties have the same level of equality.

It is in this criminal procedure the prosecutor, the victim and the defense enjoy the same rights and guaranteesand what will be resolved in court will be in charge of an independent and impartial judge, the Judge.

This Law is implemented Law on Criminal Procedure which embodies principles, guarantees and rules in its first book. The governing principles are: respect for human rights, summary legal order, innocence, objective inquiry, challenge, gratuitousness, procedural economy, conflict resolution and test efficiency.

Among the guarantees we emphasize: the possibility of not testifying against oneself, the possibility of a trial by an impartial and independent natural judge, the guarantee of fundamental rights when they are violated, the preservation of legality and due process; In addition, guarantee that there is no double trial for the same matter, the right to enjoy a defense throughout the litigation and ensure the protection of all involved, such as victim, witnesses, prosecutors and experts.

In it Book II of Chapter IV looks at alternative methods of conflict resolution such as withdrawing or abandoning the criminal request, conciliation or mediation when the parties voluntarily request it, criteria of possibilities when the criminal action did not cause major damage, conditional suspension of the proceedings depending on the situations and agreement on punishment.

Criminal acts that allow the withdrawal or waiver of a criminal act are: fraud, theft, secret murder, secret injuries, physical injuries, embezzlement, damage, usurpation, crimes committed with a check, lewd events when the victim is an adult and violation of family duties.

Likewise, the criminal offense of slander and insult, evasion of quota, as long as they do not affect property The state, the inviolability of the home, criminal offenses against intellectual property, forgery of documents and inviolability of secrets.

The Conciliation and mediation, governed by the following foundations such as the fact that the process will be governed by the free and spontaneous manifestation of the parties; It is applicable only in criminal acts that allow the withdrawal of the lawsuit, in these cases it is necessary that both the offender and the offended party express a desire for its application.

Then, when the probate judge or prosecutor feels that the dispute is one that allows for an agreement and settlement between the parties involved, they will send a petition to the Alternative Centers for Resolving public ministry and/or judicial branch conflicts, and will explain to the participants their options and guarantees, as well as the advantages and benefits of attending Center for Reconciliation.

After the request is accepted Bail Judge an order for the temporary suspension of the processing of the process for up to one month in order to hold mediation sessions. When the intervener needs the criteria of a witness or expert for the assessment of damages, the deadline can be extended by another month.

After the hearing, the Conciliation Center will send it to the court corresponding results of what was agreed upon in mediation. In case of failure to reach an agreement, the criminal proceedings will continue at the appropriate stage; If, otherwise, an agreement is reached between the parties, it will determine the temporary suspension of the criminal proceedings for one year, in order to comply with the agreement.

Gorjon Gomez (2015) conceptualizes mediation as “a peaceful and voluntary procedure, which is carried out through dialogue, so that the parties involved in the conflict have the opportunity to express their feelings, needs and emotions, under the direction of a neutral third party who conducts the dialogue” (p. 72).

According to Rodríguez Aguilar (2015), the mediator’s role is “to improve communication between the parties so that they clearly specify the conflict, reveal their interests and generate options to reach a satisfactory agreement, to achieve a clear and fair process, to find a solution.” to conflict”. (p. 86).

Thus, mediation is understood as “negotiating grace” work where a personal, impartial third party acts which provides mechanisms for developing communication within an optimal environment and ensures that none of the parties involved are undermined.