The Academy of Justice at the Supreme Judicial Court of the Republic of Kazakhstan held the VI Eurasian Forum on Human Rights on December 06, 2024, dedicated to World Human Rights Day. The topic of the forum this year was designated as "Human rights: legislative regulation and law enforcement practice". The Forum is a platform for dialogue on the promotion of legislative initiatives in order to improve the quality of the administration of justice on human rights issues. It was held in an online format, and judges, scientists and practicing lawyers took part in its work in the following sections:

1. The state-legal aspect of human rights protection.
2. Civil law protection of the rights and interests of citizens.
3. Criminal law protection of human rights and freedoms.

As part of the work of the 3rd section, the head of the NGO "MPC" Zhakupov J.A. made a report on the topic: "The use of the institute of mediation in criminal proceedings legislative and practical issues." Full text of the report:

Zhakupov Zhandilda Azhigalievich,

Master of Law Degree,

President

NGO "International Human Rights Center",

Kazakhstan

"Application of the institute of mediation in criminal proceedings legislative and practical issues"

The institution of mediation in criminal proceedings was introduced in Kazakhstan from the very first days and was immediately reflected in the Law of the Republic of Kazakhstan "On Mediation" in 2011. Along with meditation on civil, family, labor, corporate and other disputes, at the same time, restorative mediation began its gradual introduction into the legal system of our republic and has received sufficient development to date. Over the past 12 years, mediation has found practical application in resolving disputes and conflicts in the criminal sphere at the pre-trial stage, during the trial and at the stage of execution of punishment.

Analyzing the experience of using criminal mediation, I suggest discussing several points that require attention. It is necessary to effectively use this alternative method of conflict resolution, without trampling on anyone's rights and interests and restoring the balance violated by the offense.

1. Informational meetings with the mediator.

In a number of countries, such as Spain, Kyrgyzstan and Azerbaijan, the practice of holding informational meetings with a mediator for the parties to the conflict is being successfully implemented. The purpose of such meetings is to provide participants with comprehensive information about the essence of mediation, its tasks and goals, as well as the role of the mediator. These meetings help the parties to the conflict to better understand the differences between mediation and other dispute resolution procedures and decide whether to use it.

The information meeting is not part of the mediation procedure itself and does not involve negotiations on the merits of the dispute. Unlike a common misconception, such a meeting does not constitute pre-trial mediation. At the meeting, the mediator only explains the key points of mediation, the principles and the role of the mediator. The purpose of this meeting is to inform the participants, explain to them all five basic principles of mediation, as well as describe how mediation can help in resolving the conflict. It is important to emphasize that this is an exclusively introductory conversation, in which the mediator does not try to resolve the dispute, but only introduces the parties to the very essence of the procedure.

An example is the practice of Spain, where, within certain categories of disputes, a mandatory 40-minute meeting with a mediator is established for the parties. This approach is aimed at ensuring that the parties to the conflict have a clear understanding of the mediation process and can consciously decide on the further use of this procedure.

Thus, the practice of holding informational meetings with a mediator is an important element of the preliminary stage of mediation. Such meetings raise the awareness of the participants, help them to consciously assess their capabilities and make an informed decision on the expediency of further participation in the mediation procedure.

As a member of the group of the Senate of the Parliament on the development of a draft law on amendments and additions to the Law of the Republic of Kazakhstan "On Mediation", I have repeatedly proposed changes to the Code of Criminal Procedure on holding information meetings with a mediator. But so far these proposals have not been supported by the deputy corps, but they have been taken into account and are still being studied and discussed.

       2. Competence of law enforcement officers in matters of mediation and clarification of rights to participants in the process.

When clarifying the rights of participants in the criminal process at the pre-trial stage, attention should be paid to clarifying the right to mediation in those criminal offenses and cases where it is applicable. The participants in the process should receive full information: who is a mediator, what is his role, in what situations mediation can be applied, what are the consequences of concluding a mediation agreement. Law enforcement officers, including interrogators, investigators and district inspectors, must be competent in these matters and correctly understand the essence of mediation, its legal aspects and practical significance.

And again, I will give the example of Spain, where, when adopting the law on mediation, all employees of the bodies of inquiry, investigation and district inspectors were given a short-term course that allowed employees to navigate mediation issues and explain to participants in the process the possibilities of mediation and the role of a mediator in resolving disputes, including criminal and administrative cases.

Therefore, I would like to once again draw the attention of specialized educational institutions for the training of law enforcement officers, as well as for their professional development, to teaching them the basic course of mediation. This will help them become more competent in alternative dispute resolution methods, effectively inform citizens about mediation to resolve conflicts and conduct restorative procedures.

        3. The role of mediation information stands and online resources of mediation organizations

In continuation of the topic of informing conflicting parties about mediation opportunities, it is necessary to ensure that information about mediation is available at all levels of law enforcement and judicial authorities. In particular, in each police station, as well as in courts and prosecutor's offices, brief and understandable explanations about what mediation is, who the mediator is and in what cases it can be applied should be posted on information stands. This will allow citizens, including victims and defendants, as well as participants in administrative and civil cases, to learn about mediation opportunities and contact professional mediators.

To simplify the search for mediators, it is important that information stands in the relevant government agencies indicate the names of mediator organizations and links to their official websites. This will allow the parties to the conflict to quickly find the necessary information and seek help in resolving the dispute. The register of all mediator organizations is posted on the website of the authorized body of the Ministry of Culture and Information of the Republic of Kazakhstan[1].

It is enough to indicate on the information stands links to the websites of mediation organizations, where victims, accused, suspects will be able to find contact details and resumes of mediators.

This will increase the level of legal awareness of the population and provide an opportunity to resolve their disputes on their own terms within the framework of current legislation.

        4. Mediation in the penal system.

Professional mediators also work successfully in the conditions of the penitentiary system. They help to resolve issues of the relationship between convicts and persons related to them in one way or another on issues of a civil nature, family plan, parole, commutation of punishment and others. The legal system at all stages provides an opportunity for the offender to personally take measures to restore relations and mitigate the conditions of his sentence and detention, and for the victim to receive compensation for material and moral damage. Here I would also like to note the need for the above points to inform convicts about

mediation, on the design of penitentiary institutions with stands and the availability of information about mediation for convicts and citizens visiting them. I would like to draw attention to the fact that, according to the accessibility of institutions of the penal correction system for mediation, all organizations of mediators should be given the same rights to work, since all public associations are equal and none of them can be given any preference by the heads of institutions of the penal correction system. In practice, the heads of these institutions conclude memorandums of cooperation with one organization of mediators and deny access to institutions to mediators of other organizations and conduct mediation. Here it is necessary to point out to them that, in accordance with the Law "On Mediation", the mediator is chosen by the parties to conduct mediation and violation of this principle and the creation of artificial obstacles in the professional activity of mediators are illegal.

        5. Notification of mediation organizations about criminal prosecution of professional mediators.

Currently, the legislation does not regulate the obligation of criminal prosecution authorities to inform mediator organizations about bringing a mediator to criminal responsibility. The Law on Mediation states that a mediator against whom criminal prosecution has been initiated cannot continue his activity as a mediator and must be excluded from the register of mediators until the investigation is completed. Also, persons with a criminal record cannot carry out the activities of a mediator. But there is no provision in the legislation obliging the criminal prosecution authorities to notify the organization of mediators about the initiation of criminal proceedings against its member. This leads to violations of the law, since due to the lack of this information from the organization of mediators, the professional mediator remains on the register and can carry out his activities.

There are many mediation organizations in Kazakhstan. For example, the registry of our Mediation Center of the NGO "International Human Rights Center" for 2024 includes more than 700 professional mediators. The Center cannot request daily or monthly information from the criminal prosecution authorities or the bodies of legal statistics and information on each mediator in order to bring him to criminal responsibility.

This creates certain difficulties for mediator organizations in maintaining the register of professional mediators and its legitimacy. To eliminate this gap, it is necessary to introduce norms into the legislation obliging the criminal prosecution authorities to inform the organization of mediators about the fact of bringing to justice a person who is a mediator.

Summing up the above, it must be said that mediation in the criminal sphere is an acceptable, alternative way to settle disputes in court. But analyzing the current practice and existing legislation, I want to say that we cannot stop there. It is necessary to continue to study pre-trial, investigative, judicial and penal enforcement practices in conflict resolution, develop new statistical forms that allow you to draw conclusions and make decisions, discuss other methods and proposals, boldly test them in pilot projects and not be afraid of innovations and innovations. Countries that do not have criminal mediation show great interest in our practice and legislation. It is necessary to study the experience of countries with restorative mediation and continue to develop their own criminal mediation in order to achieve the most positive effect and result for all participants in the criminal process."

Following the results of the forum, Zhakupov was awarded a letter of thanks for his active contribution to the organization of the event