Criminal Mediation

Criminal mediation is the suspect or accused and the victim reaching agreement through a mediator in offences listed in the Code of Criminal Procedure (Arts. 253-255). If the parties agree and performance is completed, a decision not to prosecute is given at the investigation stage, and dismissal at the prosecution stage.

Covered Offences

• Offences whose investigation and prosecution depend on a complaint,
• Certain other offences listed in the Code.

Examples relevant to companies: basic breach of trust, basic fraud, disclosure of trade secrets and the basic form of unauthorised access to information systems. Serious offences such as aggravated fraud are excluded.

Process

1. The prosecutor or court sends the file to the mediation office; a mediator is appointed.
2. The mediator makes a mediation offer to the parties and conducts the discussions.
3. If the parties agree, a mediation report is prepared and the performance determined; it may be compensation, an apology or specific conduct.
4. If no agreement is reached, the investigation or prosecution continues; statements made in mediation cannot be used as evidence.

Consequences

• If performed immediately: A decision not to prosecute at the investigation stage, dismissal at the prosecution stage.
• If performance is later or in instalments: The process is deferred; once performed, the file closes; if not, it continues.

Importance for Companies

For a victim company, mediation provides quick and certain recovery of its loss. The response to a mediation offer should be decided by weighing the amount of loss, the offender’s ability to pay and the company’s deterrence policy.

For offences outside mediation, compensating the loss matters for effective repentance and deferment of the announcement of the verdict. Settlement in competition law is a different institution.