The article is dedicated to the application of mediation in criminal matters in Kazakhstan from the point of view of a practising mediator. It presents an analysis of the mediation applied at the pre-trial stage, as well as at the stage of enforcement of a criminal sentence imposed by a court.

The Law of Kazakhstan ‘On Mediation’ was adopted on January 28, 2011. Since its adoption criminal disputes (conflicts) have been included in its scope. Nevertheless, the potential of mediation as a restorative justice instrument was not assessed at the stage of developing this law that ultimately led to a limitation of its application in criminal proceedings.

The aim of this paper is to clarify the characteristic features of mediation in criminal proceedings in Kazakhstan, to analyse the existing problems of its application and to trace the prospects for the development of mediation in criminal matters in Kazakhstan.

History of restorative justice in Kazakhstan

The legal system of the Kazakh nation before the accession of Kazakhstan to Russia (until the 18th century) was based on an approach close to a restorative one. The relations between people were regulated primarily by common law — adat. The nomadic life of the Kazakh nation could not allow building jails. Thus, punishments related to compensation for material damage as well as for harm to life, health, honour and dignity.

Where there were cases when an offender was not able to pay a fine imposed by a judge (biy), then his family or clan had to do it for him. In the nomadic society of the Kazakh nation, the unity of a family and of a clan played a crucial role because they had influence on the offender in terms of preventing him from committing offences. The worst punishment was the expulsion from a family or from a community.

The key justice institution in Kazakhstan during that period was the Court of biys. As was mentioned previously a biy was a judge, but it was not an official position; he was neither appointed nor chosen. Normally a biy was a person who knew common law very well and was known as a wise, honest and fair person. For the community of that period it was vitally important to maintain peace between clans and tribes. For that reason a biy tried to make a decision that was acceptable to all of the participants of a dispute or a decision that at least the majority would consider fair.

After the accession of Kazakhstan to Russia, the institution of biys continued to function for some time. However, after the establishment of the Russian legal system it disappeared completely.

While being a part of the Soviet Union a punitive criminal policy was formed in Kazakhstan. The attitudes of lay people formed by the Soviet propaganda as well as of those within the criminal justice system was based on the principle: ‘A thief should be in prison.’ Unfortunately such way of thinking still prevails in the legal system of Kazakhstan.

Mediation at the pre-trial stage

In 2010 ‘The Concept of the Legal Policy of the Republic of Kazakhstan for the period of 2010–2020 regarding the Formation of an Optimal Model of Criminal Proceedings’ was adopted. The priority directions of the criminal justice development were formulated as the humanisation of the criminal punishment and a reduction of the prison population. Thus, ‘gradual introduction of the new institutions of restorative justice based on reconciliation of the parties and compensation for harm’ was included into the text of the Concept.

In 2014 the new Criminal and Criminal Procedural Codes were adopted in Kazakhstan; they entered into force on January 1, 2015.

According to Article 8 of the Criminal Procedural Code the tasks of the criminal procedure are

  •  criminal offences prevention;
  • impartial, swift and full solving and investigation of criminal cases;
  • identification and prosecution of persons who committed them;
  • fair trial and correct application of criminal law;
  • protection of persons, society and state from criminal offences.

At the same time, taking into account the new governmental objective of the introduction of restorative justice into the criminal justice system, it would be appropriate to introduce responsibilities to the criminal procedure such as

  • restoration of violated rights, freedoms and legitimate interests of citizens, state and legal entities,
  • promotion of the peaceful settlement of disputes and
  • the development of respect for law and justice.

Today the Criminal Code of Kazakhstan provides for exemption from criminal liability on the ground of reconciliation of the parties (Article 68).

The exemption conditions are as follows:

  1. commission of a criminal offence, of a crime of a small or medium degree of gravity (that is an intentional crime, the maximum term of punishment for which does not exceed 5 years,  or a negligent crime);
    commission of a serious crime not related to causing death or  serious harm to health for the first time by a special category of citizens       (minors, pregnant women, women with young children,  men raising children on their own, women over 58 years old, men   over 60 years old);

 2. full compensation of the damage caused and repairing the harm.

At the same time it should be noted that today the exemption on the ground of reconciliation of the parties is possible only if a person was not previously exempted from criminal liability for the same reason within the time limits for a conviction to become spent. This rule was introduced in December 2019, and entered into force on January 1, 2020 due to the fact that, with the adoption of the Criminal Code in 2014, repeated commission of crimes doubled from 15% to 35%.

The increase of recidivism could be connected with the expansion of the practice of exemption from criminal liability on the ground of reconciliation in the complete absence of a system of rehabilitation for persons who committed criminal offences.

The first problem of the mediation application at the pre-trial stage is the lack of awareness of the parties. When a crime is committed, only the criminal justice authorities know about it. As long as they are not bound by the task of restoring the violated rights that is not provided in the Criminal Procedural Code, they have no obligation to inform citizens about the possibility of reconciliation by taking part in mediation.

In addition, the work of the criminal justice authorities is assessed by particular quality indicators based on the number of cases transferred to a court to be resolved there, and, therefore, these bodies are not interested in the reconciliation of parties at the pre-trial stage.

The second problem refers to the procedural time limits. The time allowed for a preliminary investigation in Kazakhstan averages two months. Considering that, in order to exempt a person from criminal liability, a full compensation for damage is necessary, the time to restore the violated rights of a victim is clearly not enough if we are talking about the honest independent earnings of the accused. The criminal justice authorities, unfortunately, are interested only in the material compensation. Furthermore, when our agreements contained offenders’ voluntary obligation to undergo treatment, the courts excluded this provision and asked us ‘not to intervene in a sphere that is not regulated by law.’

This situation is a reason for possible perversions. In most cases, damage to victims is compensated by offenders’ relatives (but not by a strong community or a clan that could influence an offender as it was earlier in the history of the nomadic people; unfortunately, family and family ties in Kazakhstan are nowadays not so strong), for example, by an offender’s mother or grandmother. In this case, the offender does not take any responsibility at all.

Moreover, both victim and offender need further assistance in avoiding victimisation of the first and preventing a repeated commission of crime by the second. However, in Kazakhstan there is no such system. Even in a case of de facto compensation for damage there is no further restorative work with the parties to a conflict; that, of course, may lead to reoffending.

Mediation at the trial stage

It is in the court where parties to a conflict learn about mediation for the first time. The judge informs the parties about their right to mediation while enumerating all of the procedural rights of the parties. The mediation rooms in courts as well as mediators on duty in criminal courts largely contribute to that. Parties can agree to mediation at any moment in a trial until the judge retires to the deliberation room. The parties may also conclude a mediation agreement at the stage of appeal.

However, a number of problems arise even in this case.

The time limits remain an important problem. The average time for the case examination in a court is one month. Unlike in the civil proceedings, the conclusion of the mediation agreement does not constitute a ground to suspend the proceedings. This of course impedes compensation and practically excludes such a form of compensation for damage as earning the necessary sum of money by a defendant.

Furthermore, the issue of compensation for damage to a victim is not the only subject of discussion in the framework of a mediation procedure.

A mediator together with the parties analyses the reasons for committing an offence, facilitates discussion on what is to be done to prevent such a situation in the future and works with the victim to avoid effects on the victim’s behaviour and emotional well-being.

A main sticking point in the development of mediation in the criminal justice system of Kazakhstan turned out to be a misunderstanding of the scope of its application. Many criminal justice officers think that mediation can only be applied as a ground for exemption from criminal liability.

However, this is a misunderstanding. The Code of Criminal Procedure of the Republic of Kazakhstan foresees that after reviewing a civil claim in a criminal case the court can take a decision to approve a settlement agreement or a mediation agreement and terminate the proceedings (para. 5 of Article 170).

The legal nature of criminal offences and civil claims arising from them is different: namely, civil law disputes arising from the fact of causing harm and damage by a criminal offence are not criminal disputes but civil ones. Therefore, in this case the application of mediation in a civil lawsuit filed during criminal proceedings is subject to civil procedural standards.

Thus, when resolving a civil lawsuit in a criminal case, mediation can be conducted regardless of the seriousness of the crime. Although, if this is a crime category to which Article 68 of the Criminal Code is not applicable, a mediation or an agreement cannot be considered as a ground for exemption from criminal liability on the ground of reconciliation.

At the same time, if in a civil suit in the framework of a serious crime or of a crime of minor or medium gravity, where a victim does not agree to reconcile, but the damage is compensated, a judge must take this fact into account as a mitigating circumstance.

Furthermore, when parties to a conflict come to a decision on compensation for damage according to an instalment plan and a relevant article of the Criminal Code contains a criminal sanction alternative to deprivation of liberty the court can approve such an agreement by imposing such an alternative sanction. In this case the offender is put on probation.

The court can impose obligations to fulfil the terms of a mediation agreement (to pay compensation) in the framework of probation. In the case of a failure to fulfil these obligations, the court can replace a sanction by changing it to imprisonment. However, due to the punitive bias of the Kazakhstani justice, this practice is still available only in isolated cases and only in East Kazakhstan.

Here is a small example that demonstrates the rejection of restorative approaches by the punitive justice system. A theft from a residential building was committed. The total sum of money stolen was 260,000 tenge (approx. 617 euros). In the previous ten years a victim, Mrs O., had been robbed three times and the damages were never paid to her. On two previous occasions she filed claims for damages; the claims were not satisfied and the criminals were imprisoned. In prison there is no possibility of earning money; so the offenders could not make any compensation. After their release they avoided execution of the judgment at all costs and an opportunity legally to recover money from them was actually lost.

The mediators passed the papers to the defendant who was in the detention facility. Then he wrote a request asking for a professional mediator. Afterwards the mediator contacted the victim. It should be noted that the mediation could not be conducted in the detention facility and so the provisions of the agreement between the parties were elaborated individually with each of the parties. During the mediation procedure, the victim and the offender, Mr V., agreed that he would pay her 30,000 tenge (62 euros) of compensation per month. The offender presented a plan stating where and how he is going to earn this money. His employer was ready to provide assurances that he would hire him with a proper salary. The sanction of the article prohibiting theft provides for both restriction of liberty and imprisonment. The court accepted a mediation agreement, approved it but sentenced the offender to imprisonment practically depriving him of the opportunity to compensate the damage in accordance with the agreement. The interests of the victim who also requested the court to put the offender on probation obliging him to fulfil the terms of the agreement were ignored.

The victim was left without compensation for the third time while the offender could not use the possibility of rehabilitation.

Mediation at the stage of the criminal sentencing

As a general rule, parole in Kazakhstan applies to convicts in cases where they have paid in full a sum of a civil suit to an injured party.

However, the first paragraph of Part 1 of Article 72 of the Criminal Code of the Republic of Kazakhstan provides for the right of a court to release a person serving a sentence (restraint or deprivation of liberty) after the actual serving of its terms if the court recognises that for the offender’s correction a full service of the imposed sentence is not necessary. This rule permits an application for conditional release without an obligatory full repayment of a sum claimed in a civil lawsuit.

In East Kazakhstan the practice of applying mediation before submitting applications for parole is currently developing.

Basically an offender asks a mediator to invite a victim to take part in mediation. During the mediation procedure, the mediator facilitates negotiations between the parties on execution of the court judgment on civil claims in the case of an offender’s parole. The decision made by the parties is written down in the mediation agreement.

Moreover if according to an agreement the damage is compensated before the court decision on parole, the court is obliged to release an offender (para. 2, Part 1 of Article 72 of the Criminal Code). If in accordance with an agreement, there is an instalment plan for the compensation for damage a court has the right to release an offender by approving an agreement as the one concluded in the framework of execution of judgment upon civil claims. In this case an obligation to compensate for damage should be provided for in the decision on parole in the framework of probation. In a case of failure to fulfil this obligation parole may be cancelled.

For example, if victim and offender agree on compensation of 2,000,000 tenge (4,750 euros) when 1,000,000 tenge (2,375 euros) are transferred to a victim and consequently, a victim refuses the rest of the sum, then, in the absence of other malicious violations by offender, the court is obliged to release him on parole.

If victim and offender agreed that in a case of parole the offender pays 2,000,000 tenge dividing the sum by 50,000 tenge (119 euros) per month, the court has the right to release him, imposing obligations to compensate the damage in the framework of probation. In a case of failure to fulfil these obligations parole may be cancelled.

Similarly mediation is applied in cases of replacing a sanction with a milder form of criminal punishment.

Thus the aim of applying measures alternative to criminal punishment is achieved. Moreover, offenders are motivated to compensate for damages caused by a crime.

Reality poses new challenges before us. Mediators often not only facilitate the communication but also work on the implementation of the terms of agreements by the parties and on the rehabilitation of persons who have committed criminal offences. It is too early to declare that Kazakhstan has a restorative justice system, as well as to state that restorative mediation is extensively applied. However, we are taking the first steps, and not without success. The good news is that Kazakhstan is a pioneer in the use of mediation in the criminal matters, at least among the countries of Central Asia and the countries of the Commonwealth of Independent States.

About the author: Aksana Kalenova is a professional mediator, a senior lecturer at the Faculty of Economics and Law Sarsen Amanzholov East Kazakhstan State University, and she is the President of  East Kazakhstan Centre for Mediation and Law  ‘Alternative’.