Journal of Research and Development in Comparative Law

Journal of Research and Development in Comparative Law

Criminal Mediation in Iranian Law and the Challenges Faced; With an Approach to Indonesian Law

Document Type : scientific research paper

Authors
mohammad javanbakht 1
parisa karimei 1
Kiomars Kalantari daroonkela 2
1 PhD Student, Department of Criminal Law and Criminology, Faculty of Humanities, Gorgan Branch, Islamic Azad University, Gorgan, Iran.
2 Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Sciences, Mazandaran University, Babolsar, Iran.
10.22034/law.2023.2011605.1259
Abstract
Criminal mediation is one of the innovations of Iran's criminal policy in the field of criminal proceedings, which is based on the idea of restorative justice. This institution was accepted by the Iranian legislator for the first time in Article 82 of the Criminal Procedure Law of 1392 under the criminological teachings of protective victimology. Victimization, compensation for damages and losses, decriminalization and an alternative to the legal system of prosecution are among the reasons for the tendency to use the institution of criminal mediation. The purpose of this article is to describe the methods of mediation in criminal matters and the criticisms of it. This research shows that there are different methods of criminal mediation, which leads to more use of mediation in the criminal process.
With a comparative look at the Indonesian judicial system and a descriptive-analytical method based on library studies, the conclusion was reached that among the various methods of this institution, criminal mediation accepted in criminal policy, the type of community mediation along with judicial supervision with an emphasis on The facilitator's role is a mediator, which can be used directly in some cases and indirectly in other cases. Suspension of crimes and agreement between the parties of the case is one of the most important conditions for using this institution in Iran's judicial system. In this regard, to expand and develop the use of this institution, the regulation of mediation in criminal matters was approved by the Board of Ministers on 7/28/2015. With a comparative approach between Iran and Indonesia, it seems like this; Although the approval and acceptance of criminal mediation is a good and desirable thing, but this has not been done properly and the legal requirements, including the certainty and certainty of the decisions taken, are questionable, and even the failure to reach an agreement and refer the parties to the judicial authority in some way It is considered the cause of delaying the proceedings and violating the victim's right. This requires that by clearly explaining the crimes subject to criminal mediation and adopting the rule of "pardonability of crimes" as a criterion for crimes subject to mediation in order to make wider use of the said institution and predict criminal mediation at the stage of execution of the sentence and specify the jurisdiction of the execution judge. Rulings to refer the matter to mediation and explain and describe the responsibility of the mediator in terms of criminal, civil and disciplinary liability in order to raise the position of the mediation institution as a friendly institution in lawsuits and in order to facilitate and speed up the process of justice, the necessary regulations and laws of the current issue be corrected.
Keywords
Mediation
restorative justice
victim
offender
Indonesia

Subjects

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