Criteria of Discretional Prosecution
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Abstract
This article deals with theoretical and practical problems of discretionary power - what are the main factors that are likely to influence the decision–making process of the procesution offices. Two criterias that influence the dismissals of the cases on policy ground are analysed: 1. realistic prospect of conviction or the principle of evidential sufficiency (hinreichen der Tatverdacht) and 2. public interest (interet public; öffentliches Interesse).
It is wrong for a person to be prosecuted if the evidence is insufficient. The essence of the wrongness lies in the protection of the innocent: if this principle is taken seriously, it should mean not only that innocent people are not convicted, but also that innocent people should not be prosecuted. The reason for this may be found in the dictum that „the process is the punishment“.
A futher factor is the policy of diversion. Thus, even if a case satisfies the test of evidential sufficiency, there may be strong reasons of public policy or, as it is termed in many countries „public interest“ in favour of dealing with the case by means other than prosecution. In practice, questions of evidential sufficiency and public interest often interact, but for clarity of exposition one part of the article is devoted to evidential sufficiency, and the other part of the article - to the issue of „public interest“.
It is wrong for a person to be prosecuted if the evidence is insufficient. The essence of the wrongness lies in the protection of the innocent: if this principle is taken seriously, it should mean not only that innocent people are not convicted, but also that innocent people should not be prosecuted. The reason for this may be found in the dictum that „the process is the punishment“.
A futher factor is the policy of diversion. Thus, even if a case satisfies the test of evidential sufficiency, there may be strong reasons of public policy or, as it is termed in many countries „public interest“ in favour of dealing with the case by means other than prosecution. In practice, questions of evidential sufficiency and public interest often interact, but for clarity of exposition one part of the article is devoted to evidential sufficiency, and the other part of the article - to the issue of „public interest“.
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Articles
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Please see Copyright and Licence Agreement for further details.
