Reconciliation as an alternative dispute resolution method in Turkish Criminal Procedure System

Alternative Dispute Resolution (ADR), is a general term that indicates a series of non-challenging, non judicial procedures aiming to resolve the disputes. Idea of resolving disputes thorough a non judicial procedure is not a new one since history shows us that human beings have always been used different (non judicial) traditional ways those carry out the sides of the dispute to an accaptable mediation. There are four fundamental motivations those form the basis for evolution of ADR from an elemental practice to a complex legal institution namely, avoidance of high expenses and delay of the conventional judicial remedies, contribution to individual and social peace through ensuring social participation to ADR procedures, simplifying accession to justice and providing more "effective" dispute resulition procedures. As a means of criminal justice, ADR methods originated from the fundamentals of Restorative Justice. That new criminal justice approach, built on the establisment of inadequacy of retributive justice and proposals of solutions, focuses mainly on the repairment of pecuniary losses and intangible damages caused by the offence within a process depending upon a communication between the victim and offender rather focusing on punishment as a reaction towards the offence. Since 2005, victim-offender mediation, which is one of the most common ADR methods both in comperative law and international law,has became a part of Turkish criminal Justice under the actual name of "reconciliation." In Turkish Law, the main legal basis for reconciliation is the Law no. 5271 namely Criminal Procedure Law. Ministery of Justice issued a Regulation on Reconciliation in Criminal Procedure which entered in force in 05.08.2017 is also another and more detailed legal basis for reconciliatin in Turkish Law. General principles and exceptions for determination of the offences those can be subject to reconciliation process are set forth in the article 253 of Criminal Procedure Law. In Turkish criminal justice system, reconciliation is a process that should be carried out at the investigation phase. Art.253 of Criminal Procedure Code reads that if the crime which is under investigation, is subject to reconciliation, the public prosecutor shall send the file to Reconciliation Office. For that reason reconciliation-if all other causes required by law fulfilled - is one of the causes of action in Turkish criminal justice. After the appointment of reconciler, reconciliation process starts with a reconciliation proposal both to victim and offender. Both sides of the conflict should accept the proposal for the next phase of the reconciliation, namely, negotiations. At the end of the negotiations, the reconciler shall prepare a report and deliver that to the public prosecutor together with the copies of documents given to him/her. In case that a settlement is realized, how the settlement was reached shall be explained in detail in the report, containing the signatures of the parties. In case that the suspect fulfills his/her action all at once at the end of reconciliation, it shall be ruled that there is no ground for prosecution against him/her. In case that the requirements of reconciliation are not fulfilled after the decision to postpone opening law case, a public lawsuit shall be opened.