CONSIDERATIONS ON AN ASPECT OF THE RESTORATIVE JUSTICE CONCEPT: THE CONCLUSION OF A MEDIATION AGREEMENT IN CRIMINAL TRIALS IN THE ROMANIAN LEGISLATION

Résumé

This article analyzes the transformations, the legislative and jurisprudential evolution (regarding the compulsory national jurisprudence) as well as the problems caused by the regulation of the institution of mediation in the criminal cases, as a cause that eliminates the criminal liability. This institution, which can be included within the broader concept of restorative justice, represents a relatively new regulation in the Romanian legislative landscape, which has registered an evolution that can be characterized as lacking in linearity and consistency. Initially, it was imagined as a simple factual way of achieving the withdrawal of the preliminary complaint, respectively of reconciliation in criminal cases (with regard to the offenses who allow the removal of the criminal liability through these institutions). With the entry into force of the current Romanian Criminal Code, it appeared the problem of maintaining this legal nature of the mediation in criminal cases, or of regarding it as a sui generis cause for the removal of criminal liability. Following the rendering of a compulsory decision of the Romanian supreme court, in this sense, followed by a compulsory decision of the Constitutional Court, in the opposite direction, the legislator himself modified the special law that regulates the institution in question, by overdoing the solution given by the constitutional court and reducing, thus, profoundly, the practical impact that mediation on the criminal side of the case can generate (by limiting the final date until which it can operate, during the criminal trial, with the effect of removing the criminal liability of the offender).