Firstly, it is appropriate to begin by giving a definition of the principle of presumption of innocence and Mediation, fundamentally due to the tractions that the latter has been able to generate with respect to the aforementioned principle, which is nothing more than the translation of the constitutional principle to our reality. of effective judicial protection.
The presumption of innocence, as I mentioned in the previous paragraph, refers to the fundamental right that our Supreme Standard contemplates and that guarantees that Every person, against whom a process has been directed, is innocent until his guilt is declared by a final judicial sentence.
Mediation, as we already know, is a conflict resolution system to obtain an agreement through dialogue and active listening, among other tools, where the parties work together and not against each other, and of course in an environment of personal development, acceptance, learning and mutual respect.
Vulnerability of the principle of presumption of innocence?
The most important thing is to clarify a question of main interest, to understand if participate in a mediation process can be interpreted as a recognition of the alleged facts by the alleged perpetrator and consequently the violation of the principle of presumption of innocence.
Given this exposition, it must be admitted that, in the majority of cases, since the claim is in mediation, “the satisfaction of the needs of the victim”, this circumstance implies the assumption by the perpetrator of the recognition of the facts. However, it must be stated on the other hand that requiring the alleged perpetrator to recognize the facts, would mean asking them to admit their authorship and, consequently, the reality of a subsequent conviction, as happens in the case of the criminal legal figure of accordance.
At this point, I understand that mediation does not have to go parallel to the figure of conformity, since, in this, Confessing the commission of the facts is not a simile of assuming responsibility and much less of being considered guilty, Because, not wanting to go to trial because you do not have confidence in the resolution is simply understanding that if you go in you can get out "ill-treated”. For this reason, he prefers to accept the agreement offered, rather than not knowing what may happen after the hearing is held.
- In cases of mediation, the accused must be informed that the purpose of mediation is to repair the damage caused, even if sometimes this information is misinterpreted, so I understand that the meaning of said expression must be defined very well, making it see what the recognition of authorship should not be considered as an acknowledgment of criminal responsibility, and that the existence of certain facts, more or less clear, is perfectly compatible with certain protests of innocence, such as the defenses included in the criminal normative text.
- Furthermore, it must be added that the existence of certain evidence or the execution of some acts that entailed some indication of guilt does not violate the presumption of innocence Therefore, it may be assessed by the judge, just as the mediation process is considered an act external to the judicial process itself, it should not be considered totally neutral from the evidentiary point of view.
- It must be reiterated that starting a mediation process does not imply admission of guilt on the part of the alleged offender, but it is also true that a negative result in a mediation does not mean having to force the magistrates and members of the Court to act as if it had not occurred.
- So that the accused understands that Going to mediation is not pleading guilty and is not presumed innocent. it must be inform with total neatness what is the procedure, what are the advantages of mediation, and what is your situation regarding the supposedly harmed person, but above all, make him see that it is presumed innocent until the contrary is proven, as stated in art. 24 EC
- Finally, I would like to comment that the victim must also respect the duty of secrecy or secrecy regarding the incidents of the mediation process of which he has been a witness or protagonist depending on the agreed confidentiality.
This is why the practical significance of this problem must be relativized, adopting attitudes of caution and prudence, since normally cases will be referred to mediation in which, in addition to the possibility of reparation, either the facts are recognized (supposed which would have to be left to the offender's choice) or from the beginning there appears sufficient probative material of authorship.
