Popowo, 7 June 2007

[ccpe-bu/docs2007/ccpe-bu(2007) 15 rev]

      CCPE-Bu (2007) 15 rev

BUREAU OF THE

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS

(CCPE-Bu)

ALTERNATIVES TO PROSECUTION

IN COUNCIL OF EUROPE MEMBER STATES

QUESTIONNAIRE

adopted by the Bureau of the CCPE

at its 3^rd meeting

(Popowo, Poland, 6-8 June 2007)

Questionnaire on alternatives to prosecution in Council of Europe member States

I.          INTRODUCTION

Under the framework overall action plan for the work of the CCPE as approved by the Committee of Ministers at the 981st meeting of the Ministers’ Deputies on 29 November 2006 and by the CCPE at its first meeting in Moscow on 6 July 2006, the Bureau of the CCPE decided, in the light of the Conference of Prosecutors General of Europe (CPGE) held in Celle from 23 to 25 June 2004 on the theme "Discretionary powers of public prosecution: opportunity or legality principle - advantages and disadvantages", to carry out a study on the adoption of alternatives to prosecution with a view to identifying the best practices followed in the Council of Europe member States and promoting them.

To that end, it is submitting the enclosed questionnaire to all the national members of the CCPE, asking them to reply in English or French by 15 September 2007, in order to fuel discussion to be held on this topic at the next plenary meeting of the CCPE, at which it will be proposed to adopt an opinion.

The Bureau of the CCPE would be grateful if you would kindly e-mail your replies to the following questions to its Secretariat at the following address: [email protected], so that they may be used to prepare the plenary meeting of the CCPE, when this question will be on the agenda.

It should be noted that the replies to this questionnaire will not in any circumstances be published in a manner suggesting that they represent the official position or situation of the States on the question considered; their sole purpose is to gather the fullest possible sample of good practices with a view to drafting a document making recommendations on this question for the European Committee on Crime Problems (CDPC), and it is the task of the members of the CCPE to gather the relevant information from the individuals and practitioners with the closest knowledge of this issue in their country.  This is in no way an evaluation.

II.         CONCLUSIONS OF THE CPGE IN CELLE

The Prosecutors General meeting in Celle from 23 to 25 June 2004 noted with satisfaction that there was a trend towards European harmonisation of the objectives of the different legal systems, revolving around the principles of public interest, the equality of all before the law and personalisation of criminal justice, in accordance with Council of Europe recommendation Rec(2000)19.

The Conference of Prosecutors General called for implementation of the principles of:

1-         the possibility of choosing between the criminal law response and other responses to offences, regardless of the system of definition of punishment by law or discretionary prosecution, given the need to punish serious offences in the public interest, particularly corruption or offences by public office-holders;

2-         serious, credible alternatives which are designed to prevent the perpetrator from reoffending and take the victims' interests into account;

3-         respect, when applying an alternative sanction, of law provisions enshrining inter alia the right of victims and the objective, fair and impartial treatment of the perpetrator.

III.         DEFINITIONS

For the purposes of the present questionnaire an alternative to prosecution shall be taken to mean the temporary or conditional abandon of prosecution in a case where an infringement of the law has been committed, exposing its perpetrator to a criminal sanction such as imprisonment or a fine with or without a suspended sentence, as well as ancillary penalties such as confiscation, the deprivation of certain rights etc. It is to be noted that pleads guilty before the courts are not covered by this questionnaire, in that they do not preclude criminal law measures.

IV. QUESTIONNAIRE

1.         Concerning the legal framework: does your country follow a system of mandatory or discretionary prosecution? Has the situation changed during the last two years or is a change envisaged? In your country, what is the percentage of criminal law responses to offences perpetrated by identified offenders in the years 2005 and 2006? Amongst those, what is the proportion of alternative to prosecution responses?

Liechtenstein has a system of mandatory prosecution. However the law allows for a number of exceptions from this rule. On 1.1.2007 a major change to the Criminal Procedural Code came into force. The new provisions (“Diversion”) allow the prosecutor to choose between 4 different alternative measures instead of filing formal criminal charges. These are a) a fine b) restraining from prosecution for a probation period of up to 2 years, c) community service and d) mediation of the underlying conflict (perpetrator/victim)  by a specially trained mediator. All measures require the consent of the defendant, A number of other preconditions must be met. All measures can be combined with ancillary obligations like restitution to the victim. When all obligations were fulfilled by the offender the proceedings are terminated. In the first 6 months of 2007 this Diversion was applied in 161 cases. It is estimated that in 2007 the percentage of alternative responses in relation to indictments will be roughly 30%. In Austria, which has a similar law in force for some years now the number of convictions dropt approx. 1/3.

2.         In the event of an offence, are your judicial authorities able to choose between criminal law measures and other responses? If so, please specify which. Is that choice definitive or can it be challenged?

The prosecutor chooses –within the rules given by law- if the case qualifies for an alternative response. The 4 different responses are listed above under 1).

3.         Who decides on this choice?  What is the specific role of the prosecutor?

It is the prosecutors decision. However the alternative measure requires the consent of the offender. If he/she refuses cooperation an indictment is filed and the case goes to court. If the judge deems the defendant guilty but considers all conditions for alternative measures met he may also propose alternative measures instead of finding the defendant guilty. The measures are the same as listed under 1)-

4.         Are there criteria for abandoning the criminal prosecution approach?

Yes.

5.         Could it happen that a serious offence escapes any prosecution because of alternative measures?

No, because felonies are excluded from these measures by law with the exception of burglary.

6.         Are victims informed beforehand, consulted, and can they challenge the decision in the case when criminal prosecution was dropped, and how are their rights preserved?

Victims rights are to be considered in as much as possible. Victims must be informed of their rights and must –with some exceptions- be heard before a case is terminated after applying alternative measures. In case of measure d) (see para1)) the consent of the victim is required (exceptions possible). The victim cannot challenge the decision by the prosecutor to apply alternative measures.

7.         Given that the response chosen gives rise to obligations in respect of the persons subjected to it - such as the reparation of damage - are they able to lodge an appeal with an impartial authority (for example, for validation by a judge of a restraining order or an obligation to undergo training proposed by way of settlement)?

There is no such appeal with an impartial authority. The person can accept the proposed measure or not. If the damage is unclear or disputed the prosecutor will try to determine the correct amount with the help of the police or a court expert, e.g. in a case where the claims of the victim seem inappropriately high.

8.         Can you give specific examples of alternatives to prosecution which you see as particularly well suited to the prevention of reoffending by the perpetrator and consideration of victims' interests?

Family violence,

Neighbour disputes,

Many forms of juvenile delinquency like damaging property by sprayers,  

Negligent bodily injury in traffic and other accidents,

Shoplifting,

“Bar brawls”.

9.         Is there a method in your country for assessing the effectiveness of alternatives to prosecution and what is it?

The law came into effect on Jan. 1^st only. An evaluation is planned at end of year.

10.       Can you provide the contact details (with their consent) of someone clearly identified as a specialist on these questions and supply examples of their work to back up your choice?

Josef Köck, Leiter der Bewährungshilfe Liechtenstein, Feldkircherstrasse 13, FL-9494 Schaan, Tel. +423 / 231 13 70, E-Mail: [email protected]

11.          Other comments

none