La Experiencia de la Mediación Penal en Chile

Abstract

ResumenEl artículo analiza el desarrollo de la mediación penal en Chile, tanto desde un punto de vista de la teoría y el marco legal aplicable, como de su desarrollo práctico, e intenta a la vez articular una mirada histórica respecto de los movimientos socio-jurídicos que han surgido en Chile y que han cimentado la recepción y desarrollo de la mediación penal en el mismo. La autora identifica a la mediación penal como una práctica específica de justicia restaurativa, si bien muestra cómo en Chile, la asociación entre ambos conceptos no es pacífica. Finaliza con una reflexión que intenta explicar el escaso nivel de desarrollo que han alcanzado estos procesos restaurativos en Chile, particularmente a partir de un análisis de los rasgos de la cultura legal chilena y de la implementación de la reforma al proceso penal en el país durante la última década. Palabras claveJusticia restaurativa, mediación penal, Chile, justicia penal, justicia penal juvenil, reparación víctimas, AbstractThe article analyses the development of penal mediation in Chile, from a theoretical, legal and practical perspective. It also attempts to make a historical account of the socio-legal movements that have taken place in Chile and which have contribute to the reception and development of penal mediation therein. The author identifies penal mediation as a specific practice of restorative justice, although also showing that this association in Chile is not at all uncontested. It ends with a reflection about the reasons why restorative justice processes have had yet a marginal place in Chilean criminal justice system, exploring among those reasons, the features of Chilean legal culture and the implementation of the criminal procedure reform during the last decade.

Restorative justice and legal culture

“…This contrasts with the situation experienced in the United States and other European countries where RJ emerged as a critique to an adversarial system that had been operating for decades (if not centuries) (Díaz Gude, 2010), and had entered into a crisis of legitimacy and/or effectiveness (Crawford, 2000: 44; Shapland, 2011: 454–456; Zehr, 1990: 94), or a ‘general dissatisfaction’ with the system (Braithwaite, 1999; Pavlich, 2005, cited in Hayes et al, 2014: 111). Since RJ posits a fundamental critique to adversarial justice, one could hypothesize that its ideological message would be weaker in countries undergoing justice changes such as Chile (Díaz Gude, 2010: 61). The legitimacy enjoyed by the newly established criminal justice system in Chile may have acted as a barrier against the flourishing of RJ (as there was no sense the system needed this further ‘reform’).…”

“…In Chile, the movement for Judicial Reforms that has spread in South America 13 since the 1990s, meant that the new adversarial system was the 'fresh air' that put an end to centuries of the inquisitorial system. This contrasts with the situation experienced in the United States and other European countries where RJ emerged as a critique to an adversarial system that had been operating for decades (if not centuries) (Díaz Gude, 2010), and had entered into a crisis of legitimacy and/or effectiveness (Crawford, 2000: 44;Shapland, 2011: 454-456;Zehr, 1990: 94), or a 'general dissatisfaction' with the system (Braithwaite, 1999;Pavlich, 2005, cited in Hayes et al, 2014. Since RJ posits a fundamental critique to adversarial justice, one could hypothesize that its ideological message would be weaker in countries undergoing justice changes such as Chile (Díaz Gude, 2010: 61).…”

“…From the standpoint of programme philosophy, penal mediation familiar to the Continental model is mostly inscribed in the theory and practice of RJ in Chile, often co-existing with other goals or ideologies, especially those derived from the ADR and access to justice movements (Matthews, 1988). These movements arrived in Chile before RJ in the fields of family, civil and labour law, and many mediators – from their practice and experience with mediation in these areas – became involved in penal mediation practices (Díaz Gude, 2010: 16–30). The infusion of European money, which had among its goals the promotion of social cohesion in the country, has also played a significant role in the increase in cases referred and the dominance in the RJ market of CAJ organizations.…”

“…One of the diversionary mechanisms that the reform introduced are the so-called ‘alternative settlements’, which served to incorporate RJ in the country. This has taken place despite the fact that the law does not specifically mention RJ or penal mediation (Díaz Gude, 2010).…”

“…RJ in Chile is a theory and practice that has been transferred from abroad (Díaz Gude, 2010), and the most widely used concept is ‘penal mediation’. Apart from the incorporation of prosecutorial discretion as stated above, key factors that have contributed to the development of RJ in Chile are (Díaz Gude, 2010: 16–35):…”