Viktor Bérces: Evidence in Criminal Proceedings
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Chapter X. The possibilities of excluding evidence and the conditions for indictment at the prosecution (intermediate) stage
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10.3. General characteristics of the mediation process (mediation)
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10.3.4. Content of the agreement. Forms of reparation

10.3.4. Content of the agreement. Forms of reparation

Jegyzet elhelyezéséhez, kérjük, lépj be.!

There are two forms of reparation, which can be used alone or in combination:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. Material reparation: in this case, it is the provision of some kind of service in cash, or in kind. This implies the requirement that the offender compensates the victim for the actual material damage caused by the crime (damnum emergens) and any loss of material benefit (lucrum cessans), in the case of services in kind or in rem.
    • If, by its nature, the damage caused can only be compensated in monetary terms, then the time lapse must also be taken into account when quantifying the damage, since there is a risk of both overestimation and underestimation of the damage caused. The mediator must pay particular attention to these aspects.1 Note that there is nothing to prevent private expert opinions from being used in the mediation process, so there is room for evidence in this area.
    • In addition to the written agreement, the mediation process should also provide for the possibility of an oral agreement, on the basis of which the offender may in the near future, of his or her own volition, provide additional monetary or in-kind services to the victim (the mediator is also responsible for facilitating these additional oral agreements). It should be noted, however, that the victim obviously cannot claim any performance beyond the actual damage and loss of benefit beyond the written agreement.2
  2. Non-material reparation: in this case, the focus is on the victim’s reconciliation (e.g. apology, repentance), the satisfaction of which is difficult to determine due to its subjectivity. The effectiveness of this form of reparation depends primarily on the personality and psychological state of the victim and the willingness of the offender to repent. It may be particularly appropriate in the case of female victims and elderly victims, who are likely to have a more difficult time coming to terms with their status as victims. The honest expression of the victim’s remorse may help to improve psychological attitudes, but it should be borne in mind that female victims should be mediated by mediators of the same sex and elderly victims by mediators of a similar age, in order to maximise the effectiveness of communication.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The above-mentioned “duality” of forms of reparation is essentially derived from the doctrinal solution of civil law, which differentiates between pecuniary and non-pecuniary damage. By analogy, in criminal law a distinction must also be made between the actual material damage caused by a crime and the adverse psychological effects – if any – suffered by the victim. The purpose of the mediation procedure is therefore twofold, although the choice of the form of reparation depends primarily on the victim’s choice. Nevertheless, I believe that the procedure can only fulfil its original function by meeting these two needs together.3
1 József Földvári: A büntetés tana. [The doctrine of punishment.] Budapest, KJK, 1970. 376.
2 Restoration to the original state (in integrum restitutio) is, by the nature of things, obviously rarely possible.
3 Let us not forget that an official (judicial) procedure that reflects a fundamentally paternalistic approach is in no way capable of solving these problems. Indeed, the victim may even develop a sense of stigmatisation for having appeared before the investigating authority or in court. Therefore, I consider a direct, emotional communication process between the offender and the victim to be the right solution, if both parties agree to it. The first and most important moment in this process is the apology of the perpetrator and the expression of sincere – or at least apparent – regret. This can be combined with a number of other forms of reparation of a complementary nature, such as making a gift or promising to help in the future.
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