在刑事执行程序阶段获得恢复性司法和调解的权利。关于最新法律和法律议程的评论

Probacja Pub Date : 2022-12-31 DOI:10.5604/01.3001.0016.1257
Marek A. Dąbrowski
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引用次数: 0

摘要

这篇文章的主题是对调解权的形式和教条主义分析,调解权是获得恢复性司法的权利的一部分。该条的目的由内容的结构决定,但考虑因素仅限于刑事案件的行政诉讼阶段。首先,目的是分析获得恢复性司法和调解的权利的法律结构。第二,根据欧盟和国际法,回答国家当局是否有义务确保行使调解权的问题,并分析其内容。第三,拟议法提案的拟订涉及确立获得恢复性司法和调解的权利。尽管欧洲委员会文件多年来一直表明,恢复性司法和调解应在刑事诉讼的每个阶段都是一项公共服务,但在行政诉讼阶段尚未确立。然而,这并不是由于欧盟法律执行不力造成的,该法律没有规定义务确保在没有恢复性司法和调解服务的地区获得这些服务的权利,这使得欧盟成员国只是所提供服务标准的守护者,而不是实施调解权的可能性的保证者。拟议法确立了获得恢复性司法和调解的权利,其中包括提交调解请求的权力,以及国家当局创造条件以实施调解但不保证调解的义务。对调解权的分析是为了提供关于规范性工作的结构和潜在方向的知识,同时考虑到欧盟法律的规定和欧洲委员会关于刑事案件行政诉讼阶段调解程序监管的文件。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The right of access to restorative justice and mediation at the stage of criminal enforcement proceedings. Comments de lege lata and de lege ferenda
The subject of the article is a formal and dogmatic analysis of the right to mediation, which is part of the right of access to restorative justice. The aims of the article are determined by the structure of the content, with the limitation of considerations to the stage of executive proceedings in criminal cases. First, the aim is to analyze the legal structure of the right of access to restorative justice and mediation. Secondly, the answer to the question of whether, in the light of EU and international law, there is an obligation for state authorities to ensure that the right to mediation is exercised, together with an analysis of its content. Third, the formulation of de lege ferenda proposals related to the establishment of the right of access to restorative justice and mediation. Despite the position, formulated for years in the documents of the Council of Europe, that restorative justice and mediation should be a public service at every stage of criminal proceedings, it has not been established at the stage of executive proceedings. However, this does not result from a defective implementation of EU law, which does not impose an obligation to ensure the right of access to restorative justice and mediation services in areas where these services are not available, making EU Member States only guardians of the standards of services provided, and not guarantors of the possibility of implementing the right to use mediation. De lege ferenda establishing the right of access to restorative justice and mediation would include the power to submit a request for mediation and the obligation of state authorities to create conditions enabling its implementation but not guaranteeing mediation. The analysis of the right to access mediation, which has not been the subject of an explication in the doctrine so far, is to provide knowledge on the structure and potential directions of normative work, taking into account the regulations of EU law and documents of the Council of Europe related to the regulation of mediation proceedings at the stage of executive proceedings in criminal cases.
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