It follows from the wording of the law that the legislator – breaking with the solution of Article 221/A of Act XIX of 1998 – does not define the material legal conditions for the application of the procedure in an exact manner, which may lead to serious legal uncertainty. Nevertheless, I believe that the conditions for application of the active remorse procedure provided for in Article 29 of the Criminal Code should continue to apply, on this basis:

The mediability of certain categories of offences is a separate point of discussion. In this respect, I am of the firm opinion that intentional, violent crimes against the person (see the relevant statutory offences against life, limb, health and human freedom) should be excluded from the scope of the procedure altogether. The nature of these offences and the privileged role of the fundamental right they violate or threaten make the state’s obligation to protect them so great that the prosecutor should not be able to refrain from prosecuting them.6 This follows, first and foremost, from Article I(1) of the Fundamental Law, which states that the protection of the inviolable and inalienable fundamental rights of the individual is a primary duty of the State. The right to life, physical integrity, health and personal liberty must also be particularly protected among the fundamental rights. How is it possible, for example, for a perpetrator of intentionally serious bodily harm to be exempted from criminal liability as a result of the outcome of an agreement of a private law nature? Where does the State’s duty to protect, which derives directly from the Constitution, disappear in this case? In my view, since these constitutional provisions must also be directly applicable in the Code of Criminal Procedure, it is only acceptable to define the conditions for mediation if the legislature excludes the infringements referred to from its scope.7

In contrast, the application of the procedure may be justified in the case of offences against transport (Chapter XXII of the Criminal Code), against property (Chapter XXXVI of the Criminal Code) and against intellectual property rights (Chapter XXXVII of the Criminal Code).

Overall, I believe that the scope of application will continue to change depending on the outcome of each victim-offender settlement. However, I would certainly prefer that the legislator – e.g. in the special part of the Criminal Code – specifically defines the legal elements that can be referred to the mediation procedure.