The Relation of the Discretional Prosecution and the Release from the Criminal Liability
##plugins.themes.bootstrap3.article.main##
Abstract
The problems analysed in the article are connected to the discretionary procesution. The marked tendency of the new Criminal Procedure Code is that there are wide possibilities for terminating the pre-trial investigation (Article 212 of CCP). Similar to many European countries, the use of the principle of expediency in prosecution is constantly increasing in Lithuania. In different countries 15-75 % of cases in which a perpetrator is known, and which can be handed over to the court are terminated by the prosecutor (or other competent officer) who uses his right of discretion. Advantages and disadvantages of discrete forms of prosecution have been discussed extensively and thoroughly. However, if regulations are not set properly, various dangers may arise. The analyses of national legal acts, especially the Criminal Code and Criminal Procedure Code, points to certain problems of the regulation of the discretionary prosecution. The article analyzes the relation of principles of the criminal procedure and the discretional prosecution.
Article 6 (1) of the European Convention declares that „everyone is entitled to a fair and public hearing“. The discretional decisions basically are made by the prosecutors. Two guarantees of fair procedure are discussed.
First, all the options for dismissal must be voluntary. In some cases the suspect may face difficulties while exercising his right to have judicial proceedings. The internation legal acts and the case law of international court emphasises that the suspect’s consent for the fact that prosecution in respect of him shall not be initiated or terminated on the basis of discretion is necessary. But the Criminal Procedure Code does not provide any procedures ensuring that a suspect is informed of his right to request for trial, and that his refuse to use this right is deliberate. The defendant must have the right to object to the disposal of his case and force the prosecutor to send his case to court for trial. In this way, the accused can proclaim his innocence and can be heard by a judge.
Second, for the non-prosecution decision the prosecutor needs the court approval. This guarantees that the procedure is conducted according to the ideas of the rule of law as the judge has the final word related to the termination of the procedure. On the other hand, though a judge of the pre-trial investigation confirms the decision to terminate the pre-trial investigation made by the prosecutor on the basis of discretion by passing a ruling, it can be stated that in many cases a prosecutor fulfils a function of justice implementation. It might be that such a transformation of functions is unavoidable, but still it has to be closely linked with the requirements for prosecutors’ qualification and protection of the rights of all participants of the process.
Article 6 (1) of the European Convention declares that „everyone is entitled to a fair and public hearing“. The discretional decisions basically are made by the prosecutors. Two guarantees of fair procedure are discussed.
First, all the options for dismissal must be voluntary. In some cases the suspect may face difficulties while exercising his right to have judicial proceedings. The internation legal acts and the case law of international court emphasises that the suspect’s consent for the fact that prosecution in respect of him shall not be initiated or terminated on the basis of discretion is necessary. But the Criminal Procedure Code does not provide any procedures ensuring that a suspect is informed of his right to request for trial, and that his refuse to use this right is deliberate. The defendant must have the right to object to the disposal of his case and force the prosecutor to send his case to court for trial. In this way, the accused can proclaim his innocence and can be heard by a judge.
Second, for the non-prosecution decision the prosecutor needs the court approval. This guarantees that the procedure is conducted according to the ideas of the rule of law as the judge has the final word related to the termination of the procedure. On the other hand, though a judge of the pre-trial investigation confirms the decision to terminate the pre-trial investigation made by the prosecutor on the basis of discretion by passing a ruling, it can be stated that in many cases a prosecutor fulfils a function of justice implementation. It might be that such a transformation of functions is unavoidable, but still it has to be closely linked with the requirements for prosecutors’ qualification and protection of the rights of all participants of the process.
##plugins.themes.bootstrap3.article.details##
Section
Articles
Authors contributing to Jurisprudence agree to publish their articles under a Creative Commons Attribution-NoDerivatives 4.0 International Public (CC BY-NC-ND) License, allowing third parties to share their work (copy, distribute, transmit) and to adapt it, under the condition that the authors are given credit, and that in the event of reuse or distribution, the terms of this licence are made clear.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
