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Prosecution: Comparative Aspects

The Decision To Prosecute

The crucial function of the prosecutor in any legal system is to determine which cases should be brought before the court for adjudication and which should be disposed of in other ways. In all legal systems, the prosecutor has some leeway in making this decision, yet the amount of freedom the prosecutor enjoys differs. American law grants the prosecutor almost unlimited discretion, whereas some European legal systems are considerably less liberal.

Discretion to dismiss. Because prosecutors do not in fact control criminal investigations, they receive from police many cases as "cleared" although the suspect's legal guilt is doubtful or sufficient evidence for establishing his responsibility in court is lacking. It would not only be a waste of judicial resources but would also be unfair to the suspect to make him stand trial if a conviction is unlikely. The prosecutor therefore has the important task of independently assessing the legal and factual circumstances of each case as well as the available evidence. He should dismiss as early as possible cases that cannot be successfully prosecuted. Standards of evidence required for preferring charges are formulated in different ways. A representative formulation might be that of the English Code for Crown Prosecutors, which proposes that charges should be brought only if there is a reasonable prospect of conviction, that is, if conviction is more likely than acquittal (Code for Crown Prosecutors, para. 5; see Ashworth, pp. 161–168).

Determining the chances of conviction implies predicting the behavior of decision-makers, that is, of the professional and/or lay judges comprising the court of first instance. Although the "prospect" test may be phrased objectively, that is, whether a "reasonable" court following the law would tend to convict, the prosecutor needs to make a prediction based on his or her personal assessment of the possible outcome of a trial—an assessment that is inevitably colored by the individual prosecutor's degree of confidence and willingness to take risks. This individual judgment on the strength of the prosecution case should, however, be distinguished from the concept of prosecutorial discretion. The prosecutor exercises discretion, in its proper sense, only when he or she regards the suspect's conviction as likely and yet refrains from filing charges. Discretion thus does not refer to the sufficiency of the evidence but is based on considerations of policy. The American system broadly permits discretionary dismissals of convictable cases and thereby casts the prosecutor in the role of an independent policymaker. In other systems, decisions on criminal policy are regarded as the exclusive domain of the legislature, and the prosecutor's task is consequently limited to determining the sufficiency of the evidence. One possible way of restricting or even eliminating prosecutorial discretion is adoption of the principle of "mandatory" prosecution. This principle, which is still recognized in a number of European systems (in Italy, the prosecutor's duty to file charges whenever there is sufficient evidence is even enshrined in art. 112 of the constitution), seeks to ensure the equal application of the criminal law by mandating its full enforcement. The law denies the prosecutor authority to make exceptions in individual cases, thus precluding favoritism or considerations of political partisanship. The source of this principle can be found in the nineteenth-century reformers' distrust of public prosecutors' impartiality—at that time, prosecutors were still regarded as obedient servants of the government, prone to abuse their power for political purposes.

Austrian law is an example of a system based on the principle of mandatory prosecution. The code of criminal procedure requires the prosecutor to do everything necessary to bring about the conviction of an offender whenever the prosecutor has received information of a criminal offense. Exceptions apply only to crimes committed abroad and to multiple offenses committed by one individual; in the latter case, the less serious charges need not be brought (Austrian StPO, para. 34). The law precludes the prosecutor from dismissing charges simply because he or she regards the case as unimportant or because the offender does not seem to merit punishment. Since 1999, the prosecutor can, however, withhold prosecution if the offender's guilt is not significant and the suspect made restitution to the victim or a payment to the state or did community service (Austrian StPO, para. 90a). This provision significantly limits the practical impact of the mandatory prosecution principle. Even before the introduction of the option of conditional dismissal, however, Austrian prosecutors did not in fact prosecute each and every criminal offense. One way to avoid wasting resources on trifles has been opened by a provision of the criminal code that permits the court to acquit the defendant when the offense does not merit punishment, especially in view of the fact that the offender had made restitution to the victim (Strafgesetzbuch der Republik Österreich of 1975, para. 42). If the conditions of this provision are met, the prosecutor can anticipate the court's decision and refrain from prosecution on the theory that the suspect would not eventually be convicted. In other cases, the prosecutor may conceal what is in effect a discretionary dismissal behind the label of "insufficient evidence"—he or she may cite doubts regarding the suspect's criminal intent or may decline to make the police follow up on an incomplete investigation (Driendl, pp. 254, 280–283; but see Nowakowski, pp. 272–275). Recognition of the principle of mandatory prosecution does thus, in effect, not preclude Austrian prosecutors from concentrating their resources on serious cases and from avoiding prosecution of even slightly doubtful minor offenses.

In Germany, the first nationwide Code of Criminal Procedure of 1877 (Strafprozessordnung vom 1. Februar 1877. Reichsgesetzblatt 1877) introduced the principle of mandatory prosecution, which can still be found in the actual version of the Code (German StPO, para. 152, 2). In the meantime, however, practical considerations led to the recognition of a growing number of exceptions (Frase and Weigend, pp. 337–339). The most important of these exceptions concerns "minor" offenses, that is, those with a statutory minimum sentence of less than one year imprisonment. With respect to these offenses—which comprise the great majority of cases reported to the police—the prosecutor can refrain from filing charges whenever the offender's guilt is "minor" and prosecution is not in the public interest (German StPO, para. 153). The prosecutor also has the option of imposing certain obligations on the suspect as conditions of nonprosecution; such obligations can be, for example, payments to be made to the victim or to a charitable organization (German StPO, para. 153a, see below). Further exceptions from the principle of mandatory prosecution exist for offenses committed abroad (German StPO, para. 153c), and for (even serious) offenses directed against interests of the state when prosecution and public trial might cause additional harm to these interests (German StPO, para. 153d). If the suspect is alleged to have committed more than one offense, the prosecutor can limit prosecution to the most serious charge and drop all others (German StPO, para. 154). Taken together, these exceptions almost seem to swallow the rule. German prosecutors are under an unqualified duty to prosecute convictable offenses only if the suspect has committed a serious felony with a statutory minimum penalty of one year imprisonment, such as murder, robbery, rape, or arson.

In fact, prosecutors make extensive use of their authority to dismiss cases on policy grounds. In 1996, prosecutors brought charges in only twenty-eight of one hundred cases in which the police were able to name a suspect. Twenty-seven out of one hundred cases were dismissed for lack of sufficient evidence, twenty-one cases were not prosecuted because there was no "public interest," and in six cases there was a conditional dismissal under para. 153a Code of Criminal Procedure (Statistisches Bundesamt, p. 118). (Eighteen out of one hundred cases were disposed of in other ways, for example, by referral to juvenile court or administrative proceedings.) Most German prosecutors nevertheless assume that prosecution should be the rule, at least with respect to non-trifle offenses. They actually welcome the principle of mandatory prosecution as a shield against pressure from outside. Yet they use their discretionary authority to get rid of the "small fry" that would only clog the court system without leading to significant sanctions.

The French Code of Criminal Procedure does not explicitly determine whether the prosecutor has discretion or is duty-bound to submit cases with sufficient evidence to the court. Yet Art. 40 CCP, which simply states that the prosecutor "receives complaints and denunciations and decides how to proceed," has generally been interpreted to confer broad discretion upon the prosecutor (Pradel, pp. 345–346). If the prosecutor does not wish to prefer charges, he or she simply lays the file aside, and prosecution can be resumed at any time. The code does not contain any guidelines on the exercise of prosecutorial discretion. Policy reasons that may prompt French prosecutors to dismiss convictable cases include restitution made to the victim, triviality of the offense, and availability of noncriminal sanctions (Frase, pp. 614–615). Prosecutors have formal authority to conditionally dismiss certain charges.

In England, both police and prosecutors have broad discretion whether to bring and sustain charges. Whereas police discretion is not formalized save by standing orders on a local level, the Code for Crown Prosecutors contains a list of considerations prosecutors are to take into account when determining whether to go forward with a case presented by the police. As a general guideline, the code states that prosecution in cases of any seriousness shall usually take place unless there are public interest factors against prosecution that clearly outweigh those tending in favor (Code for Crown Prosecutors, sec. 6.2). The list of factors suggesting a decision in favor of prosecution mainly contains criteria relating to the seriousness of the offense (for example, premeditation, a particularly vulnerable victim), whereas factors disfavoring prosecution include insignificant harm, expectation of a small penalty, negative effects of the prosecution on the victim's mental or physical health, and compensation paid by the defendant to the victim (Code for Crown Prosecutors, secs. 6.4, 6.5).

This brief overview shows that statutory rules and principles make little difference for actual prosecution practice. Prosecutors tend to follow simple rules of reason; they enforce the law vigorously with respect to serious crime, but they are selective in prosecuting minor offenses, giving due regard to characteristics of the offender and the victim as well as to noncriminal alternatives, most prominently restitution.

Informal sanctions. In many systems, prosecutorial discretion extends beyond the simple alternative between prosecution and complete inaction. Informal noncriminal sanctions are often imposed on suspects as a condition of non-prosecution. In the United States, such practices are known as pretrial diversion.

In the three Continental systems considered in this entry, the law authorizes the prosecutor to propose to the suspect that he fulfil certain obligations in exchange for having his case dismissed (Austrian StPO, paras. 90a–90m; French CPP, art. 41-1–41-3; German StPO, para. 153a). If the suspect consents and complies with these obligations, he will not be prosecuted. The theory of these provisions is that the suspect, by accepting and fulfilling the obligations, eliminates the necessity of punishment because the purposes of punishment (deterrence and/or rehabilitation) have already been met (see Burgstaller, p. 12). In the Austrian, French, and German systems, possible obligations include payments to the state or to a charitable organization (these are in practice imposed most frequently), restitution payments to the victim, and community work. In France, the suspect can also be required to give up his driver's license for a period of four months or less, or to turn over to the state objects that had been used in committing the offense (French CPP, art. 41-2). When the suspect has fulfilled the obligations he can no longer be prosecuted for the offense of which he had been suspected. While these features are identical in all three systems, rules differ as to the need for judicial consent to the prosecutor's disposition. In France, the president of the court has to ratify any agreement between the suspect and the prosecutor's office (French CPP, art. 41-2, 6); in Germany, judicial consent must be obtained (but is almost never withheld) only when the offense is fairly serious; in Austria, the prosecutor can impose the statutorily authorized conditions for dismissal without involving the court.

When the option of "conditional dismissal" was first introduced in Germany in 1975, the new law was heavily criticized on the grounds that it shifted sentencing power from the judiciary to the prosecutor and that undue pressure was put on the suspect to comply with the prosecutor's offer even when he was in fact innocent or when his guilt could not have been proven at trial. This criticism has since subsided in view of the overwhelming practicality of this instrument. As noted above, prosecutors employ this diversionary tool on a regular basis (see Weigend) and have even extended its use to large-scale white-collar crime where required payments sometimes reach extremely high amounts. The fact that Austria and France have adopted similar models in 1999 seems to indicate that the idea of prosecutorial sanctioning, in spite of its interference with the traditional judicial monopoly on sentencing, has internationally been regarded as a sensible way of disposing of minor cases.

In England, conditional dismissal of charges has not yet been adopted for adult suspects. The widespread practice of police cautioning, which consists of giving the suspect a formalized warning that his or her criminal conduct will not be tolerated further (Sprack, pp. 65–66), does not imply any immediate consequences for the individual concerned. Introduction of cautioning plus informal sanctions has been discussed, but it seems that such practice would be acceptable only if it was placed in the hands of a public prosecutor, not the police (Brants and Field, pp. 139–143; Fionda, pp. 39–40).

Discretion to select charges. One important aspect of prosecutorial discretion in the common law systems is the prosecutor's power to select the legal charges he brings against the defendant. To most instances of criminal conduct, more than one section of the criminal code can be applied, and each section may provide for a different measure of punishment. By choosing the amount and nature of charges, the American prosecutor often predetermines to some extent the sentence the defendant receives if convicted. For that reason, the selection of charges frequently plays an important role in the prosecutor's negotiations with defense counsel about the conditions of a guilty plea.

The inquisitorial structure of Continental criminal procedure makes it impossible for the prosecutor to bind the court by his legal assessment of the case. The formal accusation filed by the prosecutor determines the scope of the court's inquiry only with respect to the factual situation (person of the suspect, time, and place of the conduct in question); that is, the court cannot punish the defendant for conduct on an occasion not mentioned in the formal accusation. But the court remains free to apply provisions of the law other than those cited by the prosecutor (Austrian StPO, para. 262; French CPP, art. 351; German StPO, para. 155, 2). Any "bargaining" that may occur in Continental systems thus cannot relate to the prosecutor's charge but must go directly to the sentence to be imposed by the court.

In England, courts are bound by the legal charges brought, yet they can convict for a lesser offense included (expressly or by implication) in the offense charged (Criminal Law Act 1967, sec. 6).

Control of discretion. The American system of prosecution relies almost exclusively on the political responsibility of prosecutors and provides few other checks on their discretionary powers. In Europe, two means of confining and controlling prosecutorial discretion exist: private prosecution and court supervision. Both are of interest especially insofar as they limit the prosecutor's inconspicuous power not to prosecute.

Private prosecution. Private prosecution has historically been the primary form of prosecution. In most legal systems, prosecution by an agent of the state has gradually superseded private prosecution. Yet the victim's (or any citizen's) right to bring criminal charges can serve as a check on the public prosecutor's inaction, and many modern legal systems provide for this possibility.

In England, private prosecution still forms the theoretical basis of the prosecution system. But in practice only a minuscule portion of prosecutions is actually brought by private citizens (see above). This is not surprising because private citizens typically lack the financial means and legal expertise necessary to launch successful prosecutions. Private prosecutions are further discouraged by the fact that the Crown Prosecution Service can at any time take the prosecution away from the private citizen and terminate it. The citizen has no legal remedy against this measure.

In Germany and Austria, some criminal offenses are labeled "private prosecution offenses" and can be brought to trial by the victim without any involvement of the public prosecutor. These offenses include slander, breach of confidentiality, and, in Germany, simple assault and trespass (Austrian StPO, paras. 2 and 46; German StPO, para. 374). In Germany, the public prosecutor can at any time take over the proceedings, and the court can dismiss the case if it deems the defendant's guilt to be minor (German StPO, paras. 377, 2 and 383, 2). For the same reasons as in England, private prosecutions in Austria and Germany are infrequently brought (in 1996, only 0.2 percent of German prosecutions were initiated by private individuals; Statistisches Bundesamt, p. 84), and even less often lead to conviction. The private prosecutor must gather and present evidence without assistance from the police, he must in some cases attempt reconciliation with the offender before he can bring charges (German StPO, para. 380), and he runs the incalculable risk of dismissal, with costs, in court. The public prosecutor, on the other hand, can remain inactive with respect to offenses subject to private prosecution, which is thus largely inefficient as a control mechanism.

A different approach is to accord the victim the right to request a judicial investigation. This model exists both in Austrian and in French law. In Austria, the victim can appear as a "subsidiary prosecutor" whenever the public prosecutor has declined to open a formal investigation or has closed it without filing charges, claiming lack of evidence. The victim can, however, not bring the case directly to trial but is limited to requesting an investigating magistrate to conduct or continue an investigation. The victim cannot insist on prosecution when the prosecutor has decreed a conditional dismissal (see above) (Austrian StPO, para. 48). French law goes one step further by permitting any victim personally harmed by the offense to declare himself or herself a "civil party" (partie civile) and to set in motion a public prosecution (French CPP, arts. 1,2 and 2). The victim can do so by requesting the investigating magistrate to conduct an investigation (French CPP, art. 85) or, with respect to less serious offenses within the jurisdiction of the correctional or police court, by directly submitting his or her claim to that court (French CPP, art. 388). In either case, the public prosecutor is compelled to join in the victim's suit. The victim can thus initiate the criminal process without bearing sole responsibility for collecting the evidence necessary for conviction. This far-reaching right was originally limited to individual victims; since the 1980s, the right to act as partie civile in criminal proceedings has been extended to a large number of organizations dedicated to supporting victims of crime.

Court supervision. The prosecutor's affirmative decision to file criminal charges is always reviewable by a court. In most legal systems, summary judicial review of the strength of prosecution evidence is available even before the defendant is required to stand trial; in the absence of such review, the truth of the accusation is in any event tested in the trial itself. The defendant cannot claim, however, that the prosecutor should have refrained from filing charges on the basis of his or her discretionary authority.

Judicial review is limited with respect to the prosecutor's decision not to act. German law gives a victim who had reported the offense to the police the right to appeal to the appellate court when the prosecutor has declined prosecution on evidentiary grounds. If the court finds, on the basis of the victim's brief and the prosecutor's file, that sufficient grounds for prosecution exist, it orders the prosecutor to bring charges. The complaining victim can then join the prosecution as a "supplementary prosecutor" (German StPO, paras. 171–175 and 395, 1). The court cannot, however, review a prosecutor's refusal to prosecute if it was based on policy grounds.

Such review may be available in England. In a number of decisions since the 1960s, the Court of Appeal indicated that it was willing to review decisions not to bring prosecutions if the victim could establish that the decision in question was unreasonable (Ashworth, pp. 188–189, citing cases).

Granting the victim access to the courts for the purpose of checking the appropriateness of a prosecutor's decision not to go forward appears to be a more effective control on prosecutorial decision-making than requiring victims to bring a private prosecution. Meaningful review would, however, require that the prosecutor state in writing the general rules that guide the exercise of his discretion.

Additional topics

Law Library - American Law and Legal InformationCrime and Criminal LawProsecution: Comparative Aspects - Who Prosecutes?, Criminal Investigation And The Prosecutor, The Decision To Prosecute, Bibliography