刑事调解：让被害人可见的工具,刑事司法公正的有机组成

Mediation: An Instrument Which Can Be Seen by the Victim and an Organic Part of Judicial Justice

刑事调解是刑事司法体系整体性的进步要素,也是保护公众利益的利器。对于被害人而言,刑事调解的意义尤为重大。之前被害人几乎生活在法律真空中,在关乎诉讼主体的程序设置框架中处于劣势地位。尽管重新发现和恢复被害人身份的运动更多地在盎格鲁-撒克逊国家发生,但它之后逐渐向大多数欧洲国家扩展。被害人通过刑事调解制度变得"可见"起来。应该最大限度扩展刑事调解制度的适用范围,这应该以限制国家公权力,扩展个人意思自由理念为支撑。

Mediation is a further element of what the criminal justice system should mean. An affirmation that will not lead us back to our national model exclusively, but quite the opposite, may refer to any criminal juridical procedural system, even those in which, as a legal instrument for the protection of the public, it now consolidates. It is in the 1970 s when, in some countries with more impetus than in others, that movement to＂rediscover＂the victim begins, given the state in which criminal prosecution leaves the latter. In brief, the victim lives in a legal vacuum which implies, at least, in the framework of their consideration as a person with rights,a situation of inferiority in the procedural setting with regard to the subjects intervening in the proceedings.With regard to mediation, it should not be limited in legal terms, but instead let those that live the experience of＂criminal prosecution＂in the social and democratic state be the ones that recommend or otherwise the possible referral of＂those＂victims to mediation. On the basis of that referral, the essential work will be in the hands of the criminal mediator who should demonstrate capability and skill not only to be a＂mediator＂but to be a＂good mediator＂, knowledgeable of the law that underpins the task.