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 3rd 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?
Answer: Sweden has the system of mandatory prosecution. However, there are possibilities to, under certain specified conditions, waive the case. These situations are regulated in The Swedish Code of Judicial Procedure, Chapter 20 Article 7. There are also possibilities not to prosecute juveniles under specific conditions. The situation has not changed during the last two years.
The prosecutors are encouraged by the Prosecutor General to use the possibilities to waive prosecution concerning juveniles.
There is no possibility to find out the proportion of criminal law responses to alternative prosecution responses as the Swedish Penal Code covers all kinds of punishments, also such “punishments” as different kinds of social cares.
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?
Answer: If an offence has been committed, the judicial authorities have to choose a criminal law measure. However according to the Swedish Penal Code there are possibilities to choose other measures than fines and imprisonment. There are also measures like conditional sentence and probation.
A .If a person who has committed a crime can be made subject to treatment under the Act on the Treatment of Drug Misusers, the court may hand over the case to the social welfare committee or, if the person in question has already been admitted to an institution where such treatment is provided, to the board of such an institution , to arrange the necessary treatment.
B .If a person who has committed a crime for which the sanction cannot be limited to a fine, suffers from a serious mental disturbance, the court may commit him for forensic psychiatric care if, having regard to his mental condition and personal circumstances, admission to an institution for psychiatric care combined with deprivation of liberty and other coercive measures, is called for.
C. If the defendant is under the age of 21 he or she can be made subject to treatment or other measure under the Social Services Act or the Care of Young Persons Special Provisions Act. There is a provision that the juvenile might be sentences to community service.
D. If a person has committed a crime before attaining the age of eighteen, and if the court finds that the sanction should be imprisonment, it shall instead decide on the sanction of closed juvenile care for a certain period. The court may impose closed juvenile care for at least fourteen days and at most four years.
E. If the defendant is under 18 years, there is a provision in the Swedish Code of Judicial procedure that the prosecutor may waive prosecution. The conditions for this is that the juvenile will be subject for treatment according to the Social Services Act, care or other measure according to the law concerning specific treatment of juveniles or other measure ensuring that the juvenile will have support.
3. Who decides on this choice? What is the specific role of the prosecutor?
Answer: The court decides on the choice of punishment under A - D. The prosecutor makes the decision concerning waiving of prosecution under E.
.
4. Are there criteria for abandoning the criminal prosecution approach?
Answer: No
5. Could it happen that a serious offence escapes any prosecution because of alternative measures?
Answer: No. Serious offences are prosecuted.
However, the sentence may, according to the Swedish Penal Code result in alternatives to imprisonment. That means that the court may commit a murderer for forensic psychiatric care if he suffers from a serious mental disturbance.
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?
Answer: Yes, victims are informed when the decision not to prosecute or to prosecute is made by the prosecutor. They can challenge the decision when criminal prosecution is dropped. They can appeal against the decision of the prosecutor to the Director of Public Prosecution. If the Director of Public Prosecution does not change the prosecutor`s decision, the victim may appeal against the decision to the Prosecutor General. The victim is permitted to start a prosecution on his own if the final decision is that the prosecutor will drop the case.
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)?
Answer: No
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?
Answer: The alternatives to prosecution concerning juveniles are aiming to prevent further offences by the perpetrator.
9. Is there a method in your country for assessing the effectiveness of alternatives to prosecution and what is it?
Answer: The Swedish National Council for Crime Prevention executes all kinds of research concerning crimes committed in Sweden.
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?
Answer: There is no specialist concerning alternatives to prosecution in general. But the Prosecution Development Center, Stockholm, is dealing specifically with juveniles. In that context they also deal with the issue of alternatives to prosecution, but only when it comes to juveniles.
- Other comments
It is of great importance to emphasize that all kinds of responses are regarded as “punishments” and are covered by the Swedish Penal Code. Consequently we do not choose between criminal law measures and other responses as all the “other responses” are to find within the framework of the Penal Code. So, according to the Swedish law there are no administrative or civil ways to punish an offender.