Comparative Criminal Law, Lecture 3 (14 March 2017), Course Utrecht University (2016/2017)

Topic: Prosecution. 

Comparative Criminal Law

Lecture 3, Prosecution (14 March 2017).

Introduction

Prosecution is one of the key topics of the Criminal justice and criminal proceedings. The Prosecutor is the gatekeeper, the one who decides to prosecute or not. This may have a lot of consequences. Today we will discuss the function and institution of the prosecution. What does the prosecutor do and who is the prosecutor? This is very important to understand. It is difficult to give this overview, because there are many differences between countries. Therefore, the main traditions will be discussed; the Continental tradition (inquisitorial and mixed system) and the Common law system (adversarial systems).

In the Middle Ages there was a lot of torture to examine whether there was criminal behaviour. The suspect was obliged to undergo these torture. There was no need for a prosecution service. There has been a different development in the Continental tradition and the Common law system. The Continental tradition was more inquisitorial, with an active search for criminality.

Private prosecution vs. State prosecution

There is private prosecution and State prosecution. This may be different in the different systems. In England & Wales the prosecution was always essentially brought by private citizens, for example victims. Things changed, the Central Prosecution Service (CPS) was established in 1986. Inquisitorial and mixed systems, on the contrary, entrusted since their very beginning the power to prosecute to organs of the State (or the Church).

Continental system

What does the Prosecutor do in the Continental system? This is the one who points the finger. It’s a bit more complex, though. To understand that, we have to know the stages of the criminal proceedings. Everything starts with a suspicion of the crime. After that we go to the investigating stage and finally there is the trial stage. The prosecution has to discover the truth. The police does this as well, but it is the most important task of the Prosecutor. The Public Prosecutor is the main actor in the pretrial stage. He supervises the tasks of the Police. He can decide to take measures. He can directly authorize the adoption of certain specific investigative measures. He can also be independent or subordinate to the executive power.

Common law system

In 1985 the CPS was created in England & Wales. In these and other common law systems, the Prosecutors are less important than in the Continental procedure. There are prosecutors, but still these are not the leader of the investigation. They have no investigative power nor authority over police investigations.

This is the first main distinction between the Continental and Common law system.

Differences in tasks prosecutor

In England:

• the prosecutor does not have investigative powers.
• has some informal control over police investigation.
• seeks out all reasonable lines of inquiry, and;
• selects and discloses relevant evidence.

In the Netherlands:

• the prosecutor has investigative powers
• has control over the police
• has the record of evidence
• seeks out all the relevant lines of inquiry and;
• compiles a dossier.

In Italy, the prosecutor has full responsibility of the investigations and an avail himself to the Police instructions: delegated measures, search and seizure. But the Italian prosecution trend to give more independent powers to the police (independent measures, especially in the early stage of the proceedings). The Police cannot use special investigative methods on their own initiative, with some exceptions. They have limited coercive powers.

Prosecution: meaning

The Public Prosecutor comes normally in continental systems and the Police is more important in common law systems. Certain continental systems allow the police to prosecute small offences too, without going to court.

Shall we prosecute everything?

Shall we put all our effort in the proceedings, or can we make some choice? There are two answers, one according to the legality principle and one according to the opportunity principle.

According to the legality principle the answer to the question must be yes. The opportunity principle states that only what is really important should be prosecuted. So, there are two different visions.

Opportunity principle

In some cases it is more urgent for society to only prosecute crimes that really deserve prosecution (opportunity principle). What and who deserve to be prosecuted? Normally, the two elements that should be taken into consideration concern the sufficient evidence and the public evidence.

These distinctions occur in Europe, in different systems. In France, Belgium and the Netherlands, the opportunity principle occurs, as well as in the United States. There is a tendency to go towards this principle.

There are sources in every country, but they can be limited.

There is a double stage test:

• Evidential stage: Is there enough evidence against the defendant?
• Public interest: Is it in the public interest to prosecute the defendant?

In the United States, you’ve also got the Federal prosecution. This is rules by Federal Prosecution Guidelines. This only applies on Federal grounds. What is important, are the nature and seriousness of the offense; the deterrent effect of prosecution; the person’s suability in connection with the offense; the person’s history with respect to criminal activity; the person’s willingness to cooperate in the investigation or the prosecution of others etc.

Legality principle (mandatory)

On the other hand, we have the legality principle. The legislator makes a choice on what deserves punishment. The prosecutor should follow the Code, and cannot decide which offense if more important than others.  There has to be a link with the principle of equality, linked with the idea of general prevention. Every citizen should be treated the same way; if you smuggle drugs, you should be punished. In some states, this is so important, that it is a constitutional principle. You must prosecute!

In principle, every single case must be prosecuted, unless there is no sufficient evidence. Moreover, some States attenuated the duty to prosecute, for example: introducing diversion proceedings (probation), allowing for exceptions. There are cases where there is no good result, and the prosecutor stops the case.

Judicial review of the decision to prosecute

Countries developed some kind of filters. The rationale is that the prosecution needs to know the reasons of the decision, it’s quest for transparency with important consequences. The decision to prosecute will be made during the preliminary hearing. The decision to drop the case will be made according to judicial control (the Prosecutor can be obliged to prosecute anyway; there will be a check whether the case was really that weak or not). The Prosecutor checks the probability.

• Plea bargaining: the defendant agrees to plead guilty to some or all of the charges against him in return for certain actions by the prosecutor. In the United States, for example, the prosecutor may agree to make a recommendation to the judge about the sentence to be imposed. The plea bargaining is against the idea of finding the truth. Everybody could be tempted to plea, even the innocent. Victims are being left out of the proceedings.
• Transactions: Unilateral proposal by the prosecutor to the offender, entailing payment of a certain amount of money to the treasury within a certain period of time. After the offender has paid the sum proposed, the prosecutor no longer has the right to prosecute the case.
• Other forms of diversion: The process by which a prosecutor arranges for a case not to go to court but for it to be settled in a different manner (conditional dismissal, reconciliation between victims and the offender).

The  main idea is waiving a right to trial in exchange for a reduced sentence or charge. The main rationale behind this is efficiency.

The plea bargaining normally occurs only in the opportunity principle, because plea bargaining would conflict the legality principle. Therefore it is mostly used in the opportunity principle, except for Italy.

Monopoly of prosecution

In some country there is also a limited role for victims to bring something to trial. Individuals may have some prosecutorial rights as regards certain crimes. It can be exercised when the prosecutor decides not to prosecute.

Institution

What kind of prosecutor is there? There is no European prosecutor.

In any specific case the prosecutor should be impartial, but this is not regulated in the European law. However, we do not want fully independent prosecutors. The prosecutor may be hierarchically subordinated to the executive power (appointed and part of the executive branch). Secondly, the prosecutor may be elected, dependent on politics. Thirdly, the prosecutor may be named by the judiciary. In this case the prosecutor is dependent of the judiciary or independent agencies, because he’s part of it (this occurs in Poland and the Netherlands).

Even if the prosecution is part of the executive, they can have a functional autonomy. It can also occur that the prosecutors are supervised by the Ministry of Justice (functional subordination). Who can fire or fire the prosecutors? (recruitment differences) and who sets priorities?

Centralisation and decentralisation

You should understand the degree of centralisation of prosecutors. In some cases, it’s highly centralised (strict hierarchical subordination). Limit to their discretionary powers: centralisation is an essential instrument to pursue a consistent and uniform policy on crime. In other countries, the internal structure may be of a decentralised nature; there is no hierarchical dependence among the prosecutors, each one of them enjoys complete autonomy.

In reality, there is always a certain degree of hierarchy, for example obedience to instruction of superiors, who issue certain circulars, guidelines, directives or individual instructions.