Control of Discretional Prosecution
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Abstract
This article analyses mechanisms to control discretional prosecution. Discretion without supervision and control may lead to arbitrary decisions. Therefore, the legal system has to implement possibilities for supervision and control of individual prosecutorial decisions and the use of discretionary prosecutorial power by the prosecution service at large.
We analyse various possibilities for supervision and control of discretionary power: 1. the rights and possibilities of the victim and the offender to influence prosecutorial decisions; 2. community influence; 3. effective hierarchical structure and internal control; 4. judicial control.
Victim and defendant must be informed of the decision to dispose the case in an alternative way and agree (or object) with the chosen modality. Victims and defendants may be given the right to appeal against prosecutorial decision to the superior prosecutor or the court. Many countries also provide the victim with the right to lodge complaint to the court which can examine the prosecutorial discretionary decision, and which may order the initiation of a prosecution if it finds the decision inappropriate.
In the majority of the countries the prosecution service is internally organised in a hierarchical way. The rationale of this subordination was made to supervise discretionary power of prosecution service when making prosecutorial decisions.
In a number of states the Minister of Justice is the head of the prosecution service. In this capacity he can issue written circulars and guidelines or directives instructing the prosecution service to pursue the prosecution policy as determined by Government. He can also give individual instructions. It means that Ministry of Justice can, by virtue of the code of criminal procedure, order that certain cases must be prosecuted (positive directions). Nevertheless, the majority of theorists believe that the Minister’s power to give general instructions on the one hand and to order the bringing of charges on the other, should never extend to a right of negative instruction. The Minister of Justice would not have the right to oppose or suspend the prosecution.
The prosecutor is also controled by the court system. The common law system is characterized by the almost unlimited discretion of the prosecutor to initiate or stop the proceedings during the pretrial phase. The decisions to stop proceedings does not require the approval of a judge if the trial has not yet started. In other countries the prosecutor is required to obtain the consent of a judge before he
can drop a prosecution.
As was already written, the victim and the defendant have the right to appeal discretionary decision to the court and it is another way of judicial control.
We analyse various possibilities for supervision and control of discretionary power: 1. the rights and possibilities of the victim and the offender to influence prosecutorial decisions; 2. community influence; 3. effective hierarchical structure and internal control; 4. judicial control.
Victim and defendant must be informed of the decision to dispose the case in an alternative way and agree (or object) with the chosen modality. Victims and defendants may be given the right to appeal against prosecutorial decision to the superior prosecutor or the court. Many countries also provide the victim with the right to lodge complaint to the court which can examine the prosecutorial discretionary decision, and which may order the initiation of a prosecution if it finds the decision inappropriate.
In the majority of the countries the prosecution service is internally organised in a hierarchical way. The rationale of this subordination was made to supervise discretionary power of prosecution service when making prosecutorial decisions.
In a number of states the Minister of Justice is the head of the prosecution service. In this capacity he can issue written circulars and guidelines or directives instructing the prosecution service to pursue the prosecution policy as determined by Government. He can also give individual instructions. It means that Ministry of Justice can, by virtue of the code of criminal procedure, order that certain cases must be prosecuted (positive directions). Nevertheless, the majority of theorists believe that the Minister’s power to give general instructions on the one hand and to order the bringing of charges on the other, should never extend to a right of negative instruction. The Minister of Justice would not have the right to oppose or suspend the prosecution.
The prosecutor is also controled by the court system. The common law system is characterized by the almost unlimited discretion of the prosecutor to initiate or stop the proceedings during the pretrial phase. The decisions to stop proceedings does not require the approval of a judge if the trial has not yet started. In other countries the prosecutor is required to obtain the consent of a judge before he
can drop a prosecution.
As was already written, the victim and the defendant have the right to appeal discretionary decision to the court and it is another way of judicial control.
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Articles
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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.
