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Conciliation and Criminal Mediation

After observing brief features of the importance of criminal mediation, it is necessary to indicate that in article 662 of the Organic Comprehensive Criminal Code, in a textual manner, it delimits that: “The alternative method of conflict resolution will be governed by the general principles determined in this Code and in particular by the following rules:

  1. Free and voluntary consent of the victim, of the defendant. Both the victim and the defendant may withdraw this consent at any time during the proceedings.
  2. The agreements that are reached must contain reasonable and proportionate obligations with the damage caused and the infraction.
  3. The participation of the defendant may not be used as evidence of admission of guilt in subsequent legal proceedings.
  4. The breach of an agreement can not be used as a basis for a conviction or for the aggravation of the penalty.
  5. The facilitators must perform their duties in an impartial manner and ensure that the victim and the accused act with mutual respect.
  6. The victim and the accused shall have the right to consult with a public or private defender. ”

However, it does not speak specifically of a mediator, but rather of a facilitator understood as that person who will induce the voluntary agreements of the holders of the criminal conflict, based on principles of voluntariness, confidentiality, impartiality, flexibility, informality, collaboration and respect between the parties.

However, there is a contradiction, since the Prosecutor, who has the power to conciliate during the investigation stage and the investigative stage, is a procedural part according to article 439 of the COIP, therefore it lacks the element of neutrality and impartiality that the mediation demands for that is considered as such; however, in the Code of Childhood and Adolescence is clearly defined in article 348-a, the Criminal Mediation as follows:

“The mediation allows the exchange of opinions between the victim and the adolescent, during the process, so that they confront their points of view and manage to solve the conflict that they maintain. It may refer to the repair, restitution or compensation of the damages caused; realization or abstention of certain conduct; and, provision of services to the community. Proceed in the same cases of conciliation. ” (Derecho Ecuador).We will be glad to provide advice in the areas mentioned. If you require more information, do not hesitate to contact us. here

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