Defining and Registering Criminal Offences and Measures - Oapen

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Prosecution
offences are decriminalised or when the police have the power of discretion the
input into the PPS is reduced; therefore the need of selection at PPS level is lowered.
If on the other hand the police hand all offences on to the PPS the Criminal
Justice System will have to allow for considerable discretion. Therefore the prosecutorial
decision can not be treated in isolation, but in dependence of its role
within the respective criminal justice system (cjs) and of the input and output at
this level. In this respect a set of selected, but representative criminal justice systems
of Croatia, England and Wales, France, Germany, Hungary, the Netherlands, Poland,
Spain, Sweden, Switzerland and Turkey has been studied.
The prosecution service’s workload depends on the input from the police
level. How a prosecution service can deal with the cases falling into its mandate is
a subject of great variation within Europe. The basic structures are as follows:
There are countries (e.g. Poland) in which the prosecuting authority has neither
the discretion to drop a case nor the ability to impose conditions/sanctions upon
an offender; in accordance with a strict principle of legality the prosecuting authority
merely has the function of preparing a case for court. Here the input is
identical to the output; all cases have to be brought before a court (except evidentially
insufficient cases etc. which can, of course, be dropped in accordance with
the principle of legality).
In many European countries the prosecuting authority doesn’t only drop cases
in accordance with the principle of legality but additionally has discretion whether
or not to prosecute (i.e. to drop a case completely if there is no public interest in
prosecution).
Furthermore, in some countries the prosecuting authority has not only a discretion
whether to prosecute or not, but also the ability to conditionally drop the
case, i.e. to bind or sanction the suspected offender, e.g. to pay a sort of fine as in
Germany and the Netherlands. This is only possible if s/he agrees to the measure
(otherwise the case will go to court). As the condition is “voluntarily” fulfilled, this
sort of “sanction” is not seen as a conviction.
Another case ending decision on prosecution level can be seen as a real sanction,
the so called penal order. In some countries, like in Sweden, it is an autonomous
decision of the Prosecutor, in other countries like in Germany the prosecution
service files for court approval in summary, i.e. written, proceedings. The
court can only entirely reject the application and this happens very rarely. Functionally
this can be understood as a prosecution service decision which is checked
and approved by the court. But unlike a conditional disposal it is formally a conviction.
As a result of these findings improved categories for PPS decisions could be
developed and implemented in this project.