Criminal Procedure: Comparative Aspects

Prosecutorial discretion. American prosecutors enjoy practically unlimited discretion in their decision whether to file charges against a suspect, and what charges to bring. This can frustrate victims of crime, who have no legal recourse against a district attorney's refusal to prosecute and who are in most states precluded from directly involving the courts by filing criminal charges.

Foreign legal systems offer alternatives to unfettered prosecutorial discretion. Three methods of limiting or controlling discretion can be distinguished: (1) the law can impose a duty to prosecute whenever, given the evidence available, conviction appears likely; (2) the prosecutor's refusal to bring charges can be subject to judicial review; (3) the complainant (or any citizen) can be given the right to file criminal charges directly with the court. Most European systems employ at least one of these checks upon prosecutorial discretion.

In Italy and Spain, the prosecutor cannot legally decline to prosecute a case if there is enough evidence to convict (Constituzione della Repubblica italiana, approvata dall'Assemblea Costituente il 22 dic. 1947, art. 112; Italian CCP, art. 50; LEC, art. 105). In Germany, the same principle applies, but only with respect to serious felonies (StPO, § 152 sec. 2, § 160). Observers of practice report, however, that prosecutors in these countries only pay lip service to the law; they claim insufficiency of the evidence even in convictable, but less serious cases that do not merit prosecution (Guarneri, pp. 143–152; Tak, pp. 38–41; Volkmann-Schluck, pp. 44–45). Prosecutorial discretion, it seems, cannot be abolished by legislative fiat. Rules of mandatory prosecution were introduced in many European countries in the nineteenth century, when prosecutorial offices were still suspected of being tied too closely to the political interests of the government; their rationale was to achieve equality through strict application of the criminal code without exception and political favoritism. Yet the rule of mandatory prosecution tries to exorcise the evil of inequality by the even greater evil of systematic overenforcement. This has proved to be not only unwise but also impracticable. Since prosecutors in all systems view as their function the elimination of cases in which conviction would do more harm than good, they will do so even in the face of law to the contrary.

External judicial review of prosecutorial dismissals is available in Germany and Italy. When a German prosecutor closes a case because he or she deems the evidence insufficient for conviction, the prosecutor must notify the private victim-complainant and state the reasons for dismissal. The victim can then file a complaint with the state attorney general and, if the original dismissal is upheld, can file a further appeal with the regional appellate court. The court mandates the prosecutor to file charges if the victim's claim is justified. The victim can then join the proceedings as a "supplementary prosecutor" to make sure that the prosecution case is presented forcefully (StPO, §§ 171–175, 395 sec. 1). Successful mandamus motions by victims are extremely rare in Germany, but the fact that the option is available serves as a check on prosecutorial arbitrariness. Paradoxically, victims are precluded from challenging a discretionary dismissal in court when the prosecutor's decision not to file charges is not based on lack of evidence but on policy grounds, as is possible with lesser felonies and misdemeanors (StPO, §§ 153, 153a). In Italy, dismissal of a case for lack of sufficient evidence (archiviazione) requires a judicial decree. The prosecutor must inform the victim of his or her intention to apply for archiviazione, and the victim can then file a brief in opposition with the magistrate in charge (Italian CCP, arts. 408, 410). If the magistrate deems the victim's argument in favor of prosecution well-founded, he or she orders the prosecutor to conduct additional acts of investigation or to file a formal accusation (Italian CCP, Art. 409 secs. 4, 5).

A third way of confining prosecutorial discretion is to permit criminal prosecution by private citizens. Many countries grant victims this right. They do not share the concern of U.S. courts that private victims may be so strongly involved in the case that they are unable to conduct the prosecution in a professional and detached manner. The most far-reaching provision can be found in Spain, where the constitution guarantees not only the victim of the offense but every citizen the right to bring criminal charges (Spanish Constitution, art. 125). Upon receipt of a citizen's complaint, the investigating magistrate is obliged to conduct a regular preliminary investigation. The court cannot dismiss charges preferred by a private complainant unless it finds that the act in question does not constitute a crime (LEC, arts. 637, 645). In Germany, the right to bring a private accusation is limited to certain minor offenses such as slander, simple assault, trespass, and destruction of private property (StPO, § 374). In these instances, the victim can go forward with the criminal case even without the state attorney's consent, but the public prosecutor can take over if the public interest so requires (StPO, §§ 376, 377).

Neither in Spain nor in Germany does private prosecution play a significant role in practice. This is hardly surprising because the task of collecting and presenting evidence in court places a heavy burden on a private individual. German law confronts private complainants with an additional impediment by requiring them to attempt reconciliation with the opposing party with the help of a mediator appointed by the community (StPO, § 380); only when mediation has failed can the case be brought before the court. Chances of actually obtaining a conviction are low even if the victim has cleared all formal hurdles. In cases of minor guilt, the court can simply dismiss the case even though all elements of the offense have been established (StPO, § 383 sec. 2), and it may well be that the complainant is then left with nothing but the bill for his own and his adversary's expenses (StPO, § 471 secs. 2, 3).

Most legal systems under consideration here permit victims who have suffered harm by an offense to join the prosecution with their claim for civil damages (French CCP, art. 2; German StPO, §§ 403–406c; Italian CCP, arts. 74, 76); in Spain, the public prosecutor demands civil damages for the victim unless the latter objects (LEC, art. 108). With the exception of France, however, the victim's ability to sue for civil damages in criminal court is dependent on the existence of a public action, so that the public prosecutor's unwillingness to file or maintain charges eliminates the victim's ability to recover in criminal court. In the French system, the victim can file a private criminal action (action civile) directly with the investigating magistrate or the criminal court. Since the victim's action civile is deemed to initiate a "regular" prosecution (French CCP, arts. 1 sec. 2, 418) the public prosecutor must fulfill his or her regular functions in the process even though the prosecutor may not have wished to file charges. The right to bring an action civile can be exercised not only by individuals directly affected by an offense but also by organizations representing certain interests or classes of victims, for example victims of war or of discrimination (French CCP, Arts. 2-1–2-15).

The French system evidently provides an effective check on the prosecutor's decision not to file charges. It may even go too far in subordinating the prosecutor's decision-making to the judgment of an individual victim. The German and Italian systems seem to offer a more balanced solution: if a conflict arises between the prosecutor and the victim, a neutral judge decides whether prosecution is warranted. It would be desirable to extend this system to policy-based decisions to refrain from prosecution. Prosecutors should undoubtedly have some leeway in making policy decisions on how to allocate limited resources, but the possibility of external review might at least persuade them to formulate and adhere to rational standards of decision-making in this area.

Diversion. Whenever a prosecutor dismisses a "convictable" case he or she diverts a suspect from the criminal process. Diversion can be unconditional and thus amount to a prosecutorial grant of impunity, but it can also be tied to the imposition of obligations on the suspect. In France, the prosecutor can in some areas (e.g., criminal violations of environmental and fiscal laws) enter into a "transaction" with the suspect, promising to drop the case in exchange for a payment to be made to the fisc (French CCP, art. 6 sec. 3; Conte and Maistre du Chambon, pp. 106–108; see also French CCP, arts. 41-2 and 41-3, authorizing conditional dismissal of certain less serious charges). German law provides for a similar scheme. In cases of misdemeanors and less serious felonies, the prosecutor can offer to the suspect to dismiss the case if the suspect fulfills obligations imposed on him (StPO, § 153a). In practice, such obligations almost invariably involve payments to be made to the state, a charitable organization, or the victim. The suspect can refuse to enter into this quid pro quo, but if he does he risks prosecution and eventual conviction. On the other hand, if the suspect makes the required "penance payment," he or she avoids the publicity of a trial as well as having a criminal record.

Since the 1980s, diversion from the criminal process has also been promoted and practiced as a tool of reconciliation between offenders and victims. In various systems, the prosecutor can make nonprosecution dependent on the suspect's willingness to meet with the victim and to work out an agreement involving restitution (cf. French CCP, art. 41-1 sec. 7; StPO, § 155a). Such efforts, which have led to the creation of a host of local victim/offender mediation programs (for Germany, see Bundesministerium der Justiz), rest on the notion that there is no public interest in prosecution and conviction when the offender (of a less serious offense) has satisfied the victim.

Diversionary practices are popular because they save time and money, relieve the courts' workload, and allow marginal offenders to avoid the stigma of criminal conviction. Critics have, however, pointed out several real or potential drawbacks of diversion: sentencing authority is effectively shifted from the judiciary to prosecutors; standards are lacking for diversion eligibility and obligations; the availability of conditional diversion may enlarge rather than reduce the overall scope of state control over individuals' lives ("net widening effect"); and the presumption of innocence is neglected because mere suspects are coerced into accepting diversionary sanctions by threatening them with harsher treatment after trial and conviction (Kuhlen). Yet the practical advantages of diversionary practices for prosecutors, defense attorneys, courts, and most defendants have proved so overwhelming that theoretically valid criticism was unable to stop the rapid expansion of diversion. In Germany, conditional dismissal, originally designed for petty offenses, is frequently being used for resolving even very serious cases of white-collar crime, especially those which present problems of proof: the suspect makes a high payment (sometimes equivalent to more than U.S. $100,000) in exchange for nonprosecution (Meinberg, pp. 115–127). This resolution offers benefits to both sides: the defendant can still maintain his or her innocence whereas the prosecutor can claim that the state has obtained sufficient vindication without the trouble and risk of a trial.

In order to avoid abuses, it is important to develop proper safeguards for the fair and equitable application of diversionary measures. Prosecutors should develop guidelines for diversion eligibility, including limits on the amount of payments to be demanded of suspects; suspects and victims should be given the right to have decisions on granting or refusing diversion reviewed by a judge; and there should be guarantees against penalizing the defendant at trial and sentencing for refusing to accept diversion. Such limitations on prosecutorial discretion would be justified in light of the fact that the prosecutor in the diversionary process assumes a judge-like position.