Mediation i strafferet

Damsgaard, Lars

4. semester

Jura, Kandidat

2023

2023-12-15

47 pages

Abstract This master's thesis investigates whether mediation can be introduced into Danish criminal law. The examination explores whether it can be accommodated within existing legislation or if amendments are necessary. It assesses whether mediating in criminal cases makes sense at all. The research employs a legal policy methodology, examining the consistency between current legislation and the introduction of mediation. Additionally, it evaluates whether the arrangement would be just and fair, the consequences of the legal position, and mediation's relationship to societal development. The study provides a historical overview of why punishment exists and modern perspectives on punishment. It illuminates the functions of punishment, both preventively and as a means to achieve a sense of justice. Despite using the reflective model of mediation, there are certain deviations. Mediation requires the offender to admit guilt. Although parties must reach an agreement on the sanction, the mediator's starting point is to find a shared understanding of justice that can be translated into a sanction. Thus, the focus is on justice rather than punishment. In civil cases, parties have control over the matter. Legal practice shows that in criminal cases with private prosecution rights, parties largely retain control. However, it is crucial for the criminal process to remain within the judicial power. This ensures that the substantive truth principle is still fulfilled. Simultaneously, it ensures that the offender is actually guilty and not just feeling guilty, and that judgment is rendered according to the correct legal provision and sentencing framework. Sentencing must be determined by the court. Still, if the mediation agreement is to have real influence on sentencing, the court must due consideration the mediation agreement. This, however, requires a broad assessment, especially if the mediation agreement can contain anything. Therefore, provisions specifying which elements can be included in the mediation agreement should be added. The thesis also outlines a concept for mediation in criminal cases, defining the conditions that must be met for mediation to make sense. Furthermore, it describes how the mediation process can function, including that the question of guilt must be resolved by the court, and mediation must be concluded before the court determines the sentence. In case the parties do not reach an agreement, the court makes a decision based on legal practice. Mediation occurs through dialogue between the parties, with a focus on reconciliation. Reconciliation is defined as the rebuilding of the sense of justice based on the recognition of pain, forgiveness, and acceptance of the need for forgiveness. There is an increasing trend of individualization in society, suggesting attention to more individualized sentencing, although it has not been explicitly expressed. The introduction of mediation in criminal cases is primarily for the benefit of the victim and the offender and should be implemented if there is evidence of its effectiveness in the subsequent conduct of the parties in a pilot program.

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