METHODS OF DIVERSION USED BY THE PROSECUTIONSERVICES IN THE NETHERLANDS AND OTHER WESTERNEUROPEAN COUNTRIES
Dr. Peter J.P. Tak*I. INTRODUCTION
One remarkable feature of present day criminal law enforcement in the Netherlands is that only a small
percentage of all the crimes recorded by the police are actually tried by a criminal court. Although thenumber of registered crimes increased more than fivefold between 1970 and 2005, the number of cases triedin court merely doubled.
One important reason for the discrepancy between the number of registered crimes and crimes tried by
the courts is that public expenditure for the law enforcement agencies at large has not kept pace with therising crime rate. Consequently, the police have been increasingly forced, because of resource
considerations, to fix priorities in detecting and investigating cases. This is clearly illustrated by the sharp
decline in cases which are solved. Between 1970 and 2005, the percentage of all registered crimes whichwere cleared up fell dramatically from 41% to 19%.
A second reason why relatively few cases are tried by criminal courts is that an increasing number ofcases are settled out of court by the prosecution service. While this movement originally was driven byefforts to socialize, humanize and rationalize the administration of criminal justice, the emphasis has
increasingly shifted towards the need to reduce the pressure on the criminal law administration. One
consequence has been that the prosecution service has been gradually allocated adjudicatory powers, whichwere formerly the exclusive domain of the judiciary.
The prosecution service plays a pivotal role in the administration of criminal justice. That role derives
from the prosecution service’s power over the police, its prosecution monopoly and the expediency principle
underlying its decisions on (non-)prosecution.
When utilizing these powers the prosecution service exercises discretion. The discretionary
prosecutorial power has been considerably expanded over the past twenty years in the Netherlands, both inlaw and in practice.
The police do not make an official report of every established offence, but may confine themselves todismissal with a warning, or to the issuing of a formal caution. They, too, have discretionary powers. This
practice is not based on an explicit provision in the law. On the contrary, the law contains the principle thatthe making of an official report by the police is obligatory. The discretionary powers exercised by the police
are derived from the discretionary powers of the public prosecutor not to prosecute.
The department of public prosecutors can issue general and special directives on the detection andinvestigation of the entire range of offences. Obviously, it is impossible to detect and investigate all crimes.
Thus, priorities have to be established. Investigative activities must be concentrated on certain types ofcrime, while police activities in respect of other types of crime will have a low priority.
The detection and investigation policy of the police and the prosecution policy of the public prosecutor
are complementary. In respect of the investigation of criminal offences, all investigating police officers are
subject to the prosecution service. Formally, the public prosecutor is the senior investigator (Sects. 148 CCP
and 13 Police Act). In practice, however, the police deal with most cases without prior consultation with the
public prosecutor, except in more important criminal cases, where they may give detailed instructions.
* Professor of Law, Radboud University Nijmegen, the Netherlands.

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Otherwise, consultation takes place at a more abstract level, in order to determine the policy for theinvestigation of certain types of crime and for the use of special investigation methods (undercover agents,
infiltrators etc.). This is due to the rather restricted strength of the prosecution service as well as to therecognition that with regard to investigative techniques and tactics the police possess more expertise thanthe prosecution service.

II. THE FILTER FUNCTION OF THE PROSECUTION SERVICE
The present report deals with the ‘filter function’ of the prosecution service. It is concerned with theextent of the service’s discretionary powers to divert a case out of the formal flow of criminal justice.
The prosecution service generally receives its cases from the police. Many offences, primarily petty
cases, do not come to the attention of the police and in fact remain outside the criminal justice system
entirely, to be absorbed by society.
This is also the case when the prosecution service decides to waive a case and not to proceed further
with it. Thus, although such acts deviate from the norms of acceptable social behaviour, and go beyond theboundaries of tolerance set by society for acts and actions, society is nevertheless able to deal with such acts
without formal legal procedure. Society is capable of absorbing some types of crime without harm.
The offence can also be dealt with outside formal court procedures. For example, the offence can bediverted to a settlement or reconciliation between the victim and the offender, without the further
involvement of the criminal justice system.
Other such methods include the use of a caution, an oral or a written admonition, a transaction, a
simplified procedure, a referral to legal bodies other than the criminal courts, and various other forms ofdiversion. These methods aim at diverting the suspect out of the criminal justice system at the earliest
possible stage. Once such an alternative method has been applied in a case, prosecution can no longer takeplace.
The extent to which the prosecution service diverts cases away from the criminal justice system
primarily depends on the legal basis for the prosecutorial power.
Two basic principles provide the basis for prosecutorial policies: the legality principle, and theopportunity principle (the expediency principle).
The primary premise of the legality principle is that prosecution must take place in all cases in which
sufficient evidence exists of the guilt of a suspect, and in which no legal hindrances prohibit prosecution.
The principle of opportunity, on the other hand, does not demand compulsory prosecution. Instead, it
allows the prosecution service discretion over the prosecutorial decision, even when proof exists as to theoccurrence of the criminal offence and the identity of the offender, and when there is no legal hindrance bar
proceeding with the matter.
In the Netherlands, the expediency principle has only recently (1926) been expressed in the Code of
Criminal Procedure.
Section 167 subs. 2 of the Dutch Code of Criminal Procedure reads: “the public prosecutor shall decide toprosecute when prosecution seems to be necessary on the basis of the result of the investigations.
Proceedings can be dropped on grounds of public interest”.
In the Netherlands the alternatives to prosecution are diverse but two major methods of diversion areused by the prosecution service: non-prosecution and transaction, which will be discussed.

A. Non-Prosecution
The prosecution service may decide not to prosecute in a case where a prosecution would probably notlead to a conviction, due to lack of evidence or for technical considerations (technical or procedural waiver).

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The prosecution may also decide not to prosecute under the expediency principle. The expediency
principle laid down in Section 167 CCP authorizes the prosecution service to waive (further) prosecution“for reasons of public interest”.
In appropriate cases, the prosecutor can decide to suspend prosecution conditionally. The suspended nonprosecution has no statutory footing, and is therefore theoretically dubious, but it is generally accepted thatthe prosecution service is allowed to suspend a prosecution. Explicit general or special conditions for asuspended prosecution do not exist, but in practice the prosecutor imposes conditions similar to theconditions attached to a suspended sentence.
To harmonize the utilization of this discretionary power the top of the prosecution service, the Board of
Prosecutors-General, issued national prosecution guidelines. Public prosecutors were directed to follow
these guidelines except when special circumstances in an individual case were spelled out.
Under these guidelines, a public prosecutor could waive prosecution for reasons of public interest if, forexample:• a response other than penal measures or sanctions is preferable, or would be more effective (e.g.
disciplinary, administrative or civil measures);• prosecution would be disproportionate, unjust or ineffective in relation to the nature of the offence(e.g. if the offence caused no harm and it was inexpedient to inflict punishment);• prosecution would be disproportionate, unjust or ineffective for reasons related to the offender (e.g.
his age or health, rehabilitation prospects, first offender);• prosecution would be contrary to the interests of the State (e.g. for reasons of security, peace andorder, or if new applicable legislation has been introduced);• prosecution would be contrary to the interests of the victim (e.g. compensation has already beenpaid).
The grounds for non-prosecution due to technicalities may be:• wrongly registered as suspect by the police;• insufficient legal evidence for a prosecution;• inadmissibility of a prosecution;• the court does not have legal competence over the case;• the act does not constitute a criminal offence; and• the offender is not criminally liable due to a justification or excuse defence.
Public prosecutors are not obliged to motivate their decisions not to prosecute due to technicalities ordue to policy considerations. They are, however, obliged to categorize their decisions under one of thereasons or grounds for non-prosecution previously mentioned. This categorization is no guarantee of a
uniform application of the reasons for non-prosecution. However, it provides information on the prosecution
policy pursued in each of the nineteen prosecutorial jurisdictions and provides insight into the difference inthese prosecution policies. It is one of the means to harmonize these prosecution policies.
In 2000, the proportion of unconditional waivers on policy considerations was relatively high.
Approximately 14% of all crimes cleared were not further prosecuted for policy reasons. The rationale wasthat prosecution should not be automatic, but should serve a concrete social objective. Such a highproportion of waivers on policy grounds was seriously criticized. The prosecution service was instructed toreduce the number of unconditional waivers by making more frequent use of conditional waivers, reprimands
or transactions.
Today the percentage of unconditional policy waivers has dropped to around 3%.
The decrease in the percentage of unconditional waivers did not lead to an increase in the number ofcases tried by a criminal court. This is because an increasing number of cases were either waived
conditionally or settled out of court with a transaction.

B. Transaction
Transaction can be considered a form of diversion in which the offender voluntarily pays a sum of money
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avoid further criminal prosecution and a public trial.
The opportunity to settle criminal cases by way of a transaction has long existed. Until 1983 thisopportunity to settle a case financially was exclusively reserved for misdemeanours in principle punishable
only with a fine. Following the recommendations of the Financial Penalties Committee, the Financial
Penalties Act of 1983 expanded the scope of transactions to include crimes which carry a statutory prison
sentence of less than six years (Sect. 74 CC).
The restriction that the transaction is excluded for crimes carrying a statutory prison sentence exceeding
six years has a limited impact. The overwhelming majority of crimes carry a statutory prison sentence ofless than six years.
The following conditions may be set for a transaction:a. the payment of a sum of money to the State, the amount being not less than €3 and not more thanthe maximum of the statutory fine;b. renunciation of title to objects that have been seized and that are subject to forfeiture or confiscation;c. the surrender of objects subject to forfeiture or confiscation, or payment to the State of theirassessed value;d. the payment in full to the State of a sum of money or transfer of objects seized to deprive theaccused, in whole or in part, of the estimated gains acquired by means of or derived from thecriminal offence, including the saving of costs;
e. full or partial compensation for the damage caused by the criminal offence;f. the performance of non-remunerated work or taking part in a training course lasting 120 hours.
Acceptance of the public prosecutor’s offer to settle a case financially out of court is, as a rule, beneficial
for the offender: he or she avoids a public trial, the transaction is not registered in the criminal record, andhe or she is no longer uncertain about the sentence. On the other hand, by accepting the transaction he or
she gives up the right to be sentenced by an independent court with all legal guarantees (Sect. 6 ECHR).
The almost unlimited power given to the prosecution service in 1983 to settle criminal cases by atransaction without the intervention of a court has been strongly criticized. The most important criticism
was that the increased transaction opportunities introduced a kind of plea bargaining system, represented areal breach of the theory of the separation of powers, undermined the legal protection of the accused,favoured certain social groups, and entrusted the prosecution service with powers which should remain
reserved for the judiciary. Furthermore, it was feared that with nearly ninety percent of all crimes brought
within the sphere of the transaction, the public criminal trial, with its protections for the accused, would
become the exception and not the rule.
Despite this criticism, the introduction of the broadened transaction was a great success. More than one
third of all crimes dealt with by the prosecution service are now settled out of court by a transaction. This is
in line with the criminal policy plan, which formulated the target that one-third of all prosecuted crimes besettled by way of a transaction.
Transactions for crimes seem to be very popular both for the prosecution service and the offender. Theysave the prosecution service and the offender time, energy and expenses and furthermore protect theoffender against stigmatization. Quite often high transaction sums for environmental crimes committed bycorporations are accepted in order to avoid negative publicity.
To minimize the risk of arbitrariness and lack of uniformity in the application of transactions, the Board of
Prosecutors-General has over the years issued guidelines for the common crimes for which transaction ismost frequently used, relating to the principles to be taken into consideration regarding transaction andprosecution.
The role of the prosecution service in the Netherlands has changed considerably in the last decades.
Increasingly, the prosecution service has been vested with dispositionary powers. Whenever a prosecutor
dismisses a case under conditions or settles a case through a transaction, the decisions of the publicprosecutor are similar to the decisions of the judge.

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So far these have been the Dutch experiences with processes aimed at avoiding the need to go to trial.
Some of these processes have a beneficial effect on the reduction of the prison population but the main aimof the development of these processes was to reduce the caseload of the courts.
In the second part of this report I will deal with the experiences of diverting cases in other prosecutorialservices in continental Europe.

III. PROSECUTORIAL DISCRETION IN EUROPE
As you may know, there are more than 50 States in continental Europe, each with its own criminal
procedural law system. In almost each one of these criminal procedural law systems there are processes
aimed at avoiding the need to go to trial; in short, diversion processes are applied.
Dealing with all these countries and with all the various diversion processes would lead to a very lengthy
text or almost to a book. Therefore I have selected some European countries whose systems in particular
are interesting. The selected countries are Austria, England and Wales, Finland, France, Germany, Italy, andSweden.
In England and Wales the Crown Prosecution Service has a wide discretionary power to divert cases fromcourt. The system of England and Wales in particular is interesting because unlike in other European
criminal justice systems, the Crown Prosecution Service has a weak position, compared to the police,
concerning settlements out of court or diversion.
The second group of systems I would like to deal with are the French and Finnish systems, in conjunction
with the Italian system, where criminal mediation and various ways of imposing penalties without a court
trial have been developed.
Other major criminal justice systems in Europe are German procedural law oriented systems like thesystems of Sweden, Austria and Germany itself. It is interesting to see that in these systems little diversion
is known, with the exception of Austria which has recently developed a comprehensive package of new
diversion measures.
This makes a total of seven criminal justice systems to address. As we will see, there is a large variety ofdiversion processes.

A. England and Wales
Let us start with England and Wales.1 England and Wales have a common law-based adversarial criminal
justice system, in contrast with most European systems which are civil law-based inquisitorial systems. The
police have complete discretion regarding prosecution decisions and can independently decide not toprosecute or to prosecute. In the latter case, prosecution is carried out by the Crown Prosecution Service,established in 1985. The CPS may continue the prosecution or may drop it. Both the police and the CPS may
divert a case from court through a caution.
Under which conditions may the CPS or the police divert a case and what are the criteria for diversion?
The preconditions and criteria for diversion have been modified by recent legislation (Sect. 23 CJA 2003).
The first requirement is that the authorized person has evidence that the offender has committed an offence.
The second requirement is that a relevant prosecutor decides:a) that there is sufficient evidence to charge the offender with the offence; andb) that a conditional caution should be given to the offender in respect of the offence.
The third requirement is that the offender admits to the authorized person that he or she committed theoffence.
The fourth requirement is that the authorized person explains the effect of the conditional caution to the
1 See J. Sprack, Emmins on Criminal Procedure, Oxford University Press 2004, p. 64 ff.

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offender and warns him or her that failure to comply with any of the conditions attached to the caution may
result in being prosecuted for the offence.
The fifth requirement is that the offender signs a document which contains:a) details of the offence;b) an admission by him or her that he or she committed the offence;c) his or her consent to being given the conditional caution; andd) the conditions attached to the caution.
These pre-conditions are intended to ensure that, because a caution is a statement of guilt (which can becited in court), the offender really is guilty and would be convicted if prosecuted. They are due process
safeguards, intended to inhibit the police from cautioning whenever they adjudge a suspect to be guilty but
they cannot, or would rather not, collect sufficient evidence to support a prosecution.
Caution is in England and Wales the most frequently used method of diverting a case from court. It isapplied on a very large scale. Almost 30% of all suspects are cautioned by the police. What is the position of
the CPS in this situation?
One of the functions of the CPS is to exercise control over the ‘public interest’ dimension ofprosecutions, although it cannot do anything about cases which were cautioned by the police when theyshould have been prosecuted. Indeed, the police can even tie the hands of the CPS by promising that a casewill be dropped. Although discontinuance is the prerogative of the CPS alone, it has been held to be an abuseof process for prosecution to be continued after a promise, even from the police, that it will be dropped (R v
Croden Justice ex p Dean, 1993, QB 769). In this case the ‘deal’ was discontinuance in exchange for thesuspect giving evidence for the prosecution in a murder trial. This illustrates both the structurally weak
position of the CPS compared to the police, and the way the police use prosecution and non-prosecution inthe ‘public interest’ as part of broader policing strategies.
The CPS can, in principle, ensure that cautionable cases are not prosecuted by discontinuing them.
Nearly one-third of discontinuances are on ‘public interest’ grounds. However, the CPS only rarely
recommends that a caution be substituted. A realistic view of the proportion of cases discontinued by the
CPS that should be cautioned by the police on public interest grounds (rather than marked for prosecution)
would be somewhere between around 6% and a third.
How is the substantial number of ‘public interest’ discontinuances to be explained? Well over half of them
are because a nominal penalty is expected, the defendant is charged with other serious offences or theoffence is in some other way too trivial to be prosecuted. At a time of managerial-style constraints on public
expenditure, Crown Prosecutors have become increasingly focused on issues of cost-effectiveness inprosecutions.

B. Finland and France
In Finland and France mediation is widely applied as settlement out of court but in both countries
mediation has a very different meaning.
1. Finland
In Finland some 5,000 cases annually are referred to mediation and about half of these cases have been
sent to mediation by the prosecutor.
Mediation has been used since 1983, starting from local experiments and slowly expanding from there.
However, the system does not cover the whole country. Today, all towns with a population over 25,000 andmost over 10,000 offer mediation services. Eighty percent of Finns live in a municipality that has an agency
for mediation.
Mediation does not form part of the criminal justice system but co-operates with the system as far as thereferral of cases and their further processing is concerned. There is no legislation on the organization ofmediation, but plans and proposals are being prepared. The Criminal Code has also been revised recently, sothat it now mentions an agreement or settlement between the offender and the victim as a possible ground58

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for non-prosecution, non-punishment by the court or mitigation of the sentence.
Mediation is based on volunteer work. Participation in mediation is always voluntary for all the parties.
The municipal social welfare authorities usually assist in co-ordinating the mediation services, but mediators
are not considered public officials.
Mediation can start at any time between the committing of the offence and the execution of the sentence,and can be initiated by any one of the possible parties. Three-quarters of all cases are referred to mediation
either by the prosecutor (44%) or by the police (30%).
In cases where the initiative for mediation comes from the prosecutor, he or she sends the case to themediation office with an announcement that the decision whether or not to prosecute will be made within ashort period of time (usually one to three months). In other respects, the prosecutor remains fairly passive
during the mediation process.
Once the process has started, it normally leads to a written contract. The contract contains the type ofoffence, the content of a settlement, e.g. how the offender has consented to repair the damages, place anddate of the restitution as well as the consequences for a breach of the contract.
2. France
In France,2 the law of 4 January 1993 created the médiation pénale. There are two kinds of mediation:
one for crimes and another for misdemeanours. Since the law of 23 June 1999, Sect. 41-1 CCP states that:
Where it appears that such a measure is likely to secure reparation for the damage suffered by the victim, or
to put an end to the disturbance resulting from the offence or contribute to the reintegration of the offender,
the district prosecutor may, directly or by delegation:1) bring the duties imposed by law to the attention of the offender;2) direct the offender towards a health, social or professional organization;3) require the offender to regularize his situation under any law or regulation;4) require the offender to make good the damage caused by the offence;5) with the consent of the parties, initiate mediation between the offender and the victim.
The 1999 law created another system called composition pénale as mediation for misdemeanours (Sects.
41-2 and 41-3 CCP). This is not a kind of mediation in the strict sense but a kind of financial settlement outof court as also is known in the Netherlands under the technical term ‘transaction’.
Section 41-2 CCP states that prior to any public prosecution being instituted, the district prosecutor may
propose, directly or through an authorized person, criminal mediation to an adult person who admits having
committed one or more designated misdemeanours such as destruction, domestic violence and abuse oftrust. This would involve one or more of the following orders:
1) to pay to the Public Treasury a mediation fine. The amount of such a mediation fine, which may notexceed either €3,750 or half of the amount of the maximum fine for the offence, is fixed inaccordance with the gravity of the facts as well as the income and expenses of the offender. Payment
may be made by instalments, in accordance with a schedule of payments fixed by the district
prosecutor, within a period which may not exceed one year;2) to hand over to the State the object which was used to or intended to be used to commit the offence
or which is the product of it;3) to surrender a driving licence for a maximum period of six months, or a permit to hunt for a
maximum period of four months to the clerk’s office of the first instance court;4) to perform unpaid work for the benefit of the community for a maximum of sixty hours, over a period
which may not exceed six months or to follow training within a health, social or professionalorganization for three months maximum.
Where the victim is identified, the district prosecutor must propose to the offender that he or she
compensates the damage caused by his or her offence, unless the offender can show that the damage has
already been compensated. The prosecutor must require that this happens within a period which may notexceed six months. He or she informs the victim of this proposal.
2 See J. Pradel, Procedure Pénale, Editions Cujas, 13 édition, 2006.

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The district prosecutor’s proposal for criminal mediation may be brought to the attention of the offenderthrough a judicial police officer. Here it takes the form of a written decision signed by the prosecutor, which
specifies the nature and the measures proposed and which is endorsed on the file.
Criminal mediation may be proposed in a public centre for legal advice. The person to whom criminal
mediation is proposed is informed that he or she may be assisted by a lawyer before giving his or her
consent to the district prosecutor’s proposal. This consent is recorded in an official record. A copy of theofficial record is given to the offender.
Where the offender consents to the measures proposed, the district prosecutor addresses the Presidentof the Tribunal de Grande Instance by way of a petition seeking approval of the mediation. The district
prosecutor informs the offender of this and, where necessary, the victim. The President of the Tribunal may
proceed to hear the offender and the victim, assisted, where necessary, by their lawyers. The decision of the
President of the Tribunal de Grande Instance, which is notified to the offender and, where necessary, thevictim, is not open to appeal.
Where the offender does not accept mediation or, after having given his or her consent, does not fullycomply with the measures decided upon, or where the approval required is not given, the district prosecutor
decides what further action to take. In the case of prosecution and conviction, account is taken, whereappropriate, of the work already accomplished and sums already paid by the offender.
Prosecution is suspended between the dates when the district prosecutor proposes criminal mediationand the expiry of the time granted for the mediation to be carried out.
Successful completion of criminal mediation terminates prosecution.
Finally, the law of 9 March 2004 created a French kind of plea bargaining. This principle is contained in
Sect. 137 and the procedure of plea bargaining in the Sects. 495-7 to 495-16 CCP. According to this Section,
the offender can ask for the use of this procedure. The public prosecutor receives the offender’s declarationof guilt and proposes a penalty to him or her:
if he or she accepts, the judge can approve the penalty and his or her decision will be read during apublic hearing. If the judge refuses to approve the punishment, the public prosecutor will theninitiate prosecution according to the normal rules;
the offender should have ten days to give an answer to the public prosecutor;
if the offender refuses, the public prosecutor can present the offender in court or before the liberty
and custody judge.

C. Italy
Similar diversionary measures have been developed in the 1988 Code of Criminal Procedure of Italy3
which has been a model for many diversionary measures in other Codes of Criminal Procedure in Europe.
In Italy, according Sect. 112 of the Constitution, the prosecutor is obliged to prosecute whenever there issufficient evidence to charge the offender. According to this section the prosecutor has no other choice thanprosecution or dismissal due to lack of evidence. It follows that the prosecutor cannot be vested with theright to settle a case out of court. Nevertheless room for discretion of the prosecutor is left with regard to
the cases in which the penalty can be imposed without trial: the sentence agreement (patteggiamento) andthe penal order (procedimento per decreto).
The sentence agreement consists of an agreement between the prosecutor and the offender on thesentence to be imposed. This form of diversion is characterized by an exchange between a sentence
discount and the defendant’s waiver of the right to stand trial. In other words, by means of a sentence
discount, the accused is encouraged to waive his or her right to have his or her case dealt with in a public
trial. This saves time and expense for the system. Since the policy criteria according to which the prosecutor
should give his or her consent are not defined by the law, the decision depends on his or her choice, which is
not always based only on technical reasons. Anyway, it is important to underline that, once the parties have
3 See G. Conso/V. Grevi, Compendio di Procedura Penale, 3a Editione, CEDAM, Padova 2006.

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reached an agreement, the judge must verify whether the conditions to pronounce the requested sentence
have been met.
There are three prerequisites for this proceeding without trial: the request of one party (prosecutor or
defendant), the consent of the other party, and judicial supervision. In order to reach an agreement, theinitiative can be taken both by the prosecutor and the defendant. If the request is made by the defendant, it isnecessary to get the consent of the prosecutor and vice versa. The request must express the will of ending
the proceeding with a sentence, the contents of which must be specified. In particular, the parties must
indicate the legal basis of the offence, the aggravating and mitigating circumstances and their balancing, thetype and level of penalty.
The penalty may be a fine, a non-custodial sanction or a custodial sanction. The defendant’s request orconsent can be tied to the pronouncement of a suspended sentence. In any case, the sanction is to be
reduced up to a maximum of one-third as regards the applicable one, provided that the sentence does notexceed five years’ imprisonment; but, if the sentence exceeds two years’ imprisonment, the patteggiamento is not admitted for Mafia crimes and organized crime. Once the request has been made by one party,
the other party must declare to accept it.
Of course, neither the prosecutor nor the defendant is bound by the other party’s request. Nevertheless,
it is important to underline that the prosecutor’s dissent, unlike the defendant’s, shall be justified.
In order to avoid the collapse of the trial and a useless waste of time and expense, the request shall bemade and the consent be given during the investigation stage or at the latest within the preliminary hearing;it can be said that the law presses the parties to reach an agreement at the earliest stage, as that allows the
maximum saving for the system.
Once the parties have reached an agreement concerning the appropriate level of penalty, the judge mustverify whether there are the conditions to pronounce the requested sentence or not. The powers of thejudge are substantial.
First, he or she must check that there is sufficient evidence. Otherwise, the accused must be acquitted
ex officio, notwithstanding his or her request or his or her consent to be sentenced. It means that theagreement between the parties is not exactly like a plea bargain. In fact, the defendant is not required toplead guilty, as his or her request to be sentenced, or his or her consent to the prosecutor’s request, does
not involve a guilty plea.
Secondly, the judge must verify that the charge corresponds to the facts alleged; that the application of
the aggravating and mitigating circumstances and their balancing have a legal basis; that the requested
penalty does not exceed five years’ imprisonment and its level is commensurate with the seriousness of theoffence.
Only if both tests are satisfied does the judge pronounce the requested sentence, otherwise, unless there
are conditions for an acquittal, the judge rejects the request and the proceeding will continue.
If the request is granted, the agreed sentence is imposed. The judge can refuse to impose the sentence
but cannot change it.
A trial is also avoided when the proceeding ends with the issuing of a penal order to pay a fine(procedimento per decreto).
There are two conditions required by law. Firstly, the offence shall be prosecuted ex officio. Secondly, thefine must be commensurate with the actual offence.
If the prosecutor considers these conditions met, he or she may request the judge to issue such a penal
order. The request shall be motivated and shall indicate the level of the fine, which can be reduced up to one
half of the minimum fixed by law.

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As in the case of the sentence agreement the judge must check the sufficiency of the evidence and verify
that the charge corresponds to the alleged facts and that the fine is commensurate with the seriousness ofthe offence.
Only if both tests are satisfied the judge pronounces the penal order as requested by the prosecutor. The
judge has no power to change it. The order shall contain the charge and a reasoned motivation for thedecision, including those related to the penalty discount.
The order is notified to the accused, who instead of paying the fine can ask to be tried in a public court
trial.
Let us now turn to the systems which are German procedural law oriented and start with Germany4
itself.

D. Germany
Leaving the ample option of conditional dismissal (Sects. 153a ff CCP) aside, the German prosecutor has
no authority to settle the case with a suspect or defendant out of court. The prosecutor is neverthelessfrequently involved in negotiations designed to dispose of a criminal case by consent. Such negotiations withthe defence can occur in the context of preparing a penal order (Strafbefehl), i.e., a written judgment draftedby the prosecutor and issued by the court without a hearing (Sect. 407 CCP). Penal orders can be used for
adjudicating Vergehen when the sanction consists of a fine, the suspension of a driver’s licence, and/or asuspended prison sentence of not more than one year. The defendant’s prior consent is not required, but heor she can make the penal order ineffective by filing an appeal and demanding a trial. It is therefore useful, atleast in non-routine cases, for the prosecution and the defence to discuss the possible sanction in advanceand to make sure that the defendant will accept the penal order. Many defendants are strongly interested inhaving their cases resolved without a public trial, and defence lawyers then approach the prosecutor in
charge of the case and raise the possibility of a penal order. Especially in cases where there is a white-collar
defendant, there can be extensive negotiations before a penal order acceptable to all sides is drafted andsubmitted to the court. Courts have the authority to reject a proposed penal order and order a trial but very
rarely do so.
Prosecutors are also involved in negotiating consensual judgements before, or during, trial. Since the1980s, a German version of plea bargaining has developed and quickly proliferated although there is no legal
basis for it. The Federal Court of Appeal in 1997 effectively approved of the practice if certain conditions aremet (Entscheidungen des Bundesgerichtshofes in Strafsachen, Band 43, p. 195). In many cases, defence
counsel and the court engage in negotiations either in advance of a contested trial, or when the trial has
progressed to some extent, with a view toward finding an amicable settlement, the defendant offering a(partial) confession and the court indicating its willingness to impose a lenient sentence. Although thesenegotiations are conducted mainly between the defence and the professional judge(s), the prosecutor usuallytakes part and in effect has a veto power. If he or she decides to file an appeal against a negotiated judgment
he or she can negate most of the efficiency benefits associated with the proposed ‘deal’. This kind ofnegotiated justice has been heavily criticized by scholars but has been embraced by practitioners. ‘Deals’
occur in all kinds of cases, most frequently in drug and white-collar cases. This, however, is not a process
aimed at avoiding the need to go to trial and the conclusion is that in Germany there is little opportunity tosettle cases out of court.

E. Sweden
The same is applicable to Sweden. Like Germany, in Swedish law, the principle of legality is applied, butthere are many exceptions to this principle.
The prosecution service has possibilities to waive prosecution or to terminate a case, more or lesssimilar to those in Germany. All possibilities are based on the absence of public interest to prosecute orwhere prosecution would be in conflict with public interest, for example: if continued inquiry would incur
costs not in reasonable proportion in relation to the importance of the matter and the offence, if prosecuted,
would not lead to a penalty more severe than a fine. Like in Germany, in Sweden a kind of penal order isknown but applied in a different way.
4 See L. Meyer-Gossner, Strafprozessordnung, in Beck’sche Kurz-Kommentare, 47. Auflage, 2005.

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VISITING EXPERTS’ PAPERS

According to chapter 48 Sect. 1 – 12a CJP, a prosecutor may impose a punishment on the suspect bymeans of a summary penal order (strafföreläggande). A summary penal order means that the suspect is,
subject to his or her approval, ordered to pay a fine according to what the prosecutor considers the offence
deserves. A summary penal order may even concern a conditional sentence or such a sanction coupled witha fine. The conditional sentence according to the Swedish law differs from the punishments with similarnames in other legal systems.
The summary penal order may be used as a sentencing form as regards all the offences in respect ofwhich fines are included in the range of penalties. There are no limits as to the severity of the fine, whichmeans that the prosecutor may impose the same sum as permitted by a court. A conditional sentence may
be imposed even for more serious offences, which is for offences which do not have fine in the range ofpenalties, but only imprisonment, provided that it is obvious that the particular offence does not deserve amore severe punishment than a conditional sentence.
The summary penal order may also include a decision on compensation of damages to the victim of thecrime, that is, a decision on a civil law matter, provided that the compensation consists of a payment.
The summary penal order is a final decision in a particular case and has the same validity andconsequences as a judgment of the court. It may be issued only if the offender confesses to the offence andaccepts the order. Otherwise, the prosecutor has to bring the case to court after all.
There is no legal possibility for a settlement out of court in Swedish law. Something which could be called
the first step in this direction is perhaps represented by the Mediation Act 2002 (Lag, 2002:445, om medling
med anledning av brott). The Act contains basic rules concerning mediation between victim and offender. A
possible agreement on compensation for damages, reached on the basis of mediation, cannot replace a
sentence for the crime. However, the fact that the offender has undergone mediation may influence thedecision of the prosecutor in waiving prosecution. The prosecution service itself is not engaged in mediation
activity.

F. Austria
Unlike Germany and Sweden, Austria5 in 2000 reformed the Code of Criminal Procedure and introduced
a comprehensive package of new diversion measures to be applied under general criminal law.
Diversion as understood in Austria means the early termination of criminal proceedings by the publicprosecutor or the court, in minor or, at least, less severe cases. Diversion is possible from the moment the
public prosecutor has official knowledge of the offence, until the end of the main trial. Laws do not allow
diversion by the police. The main agent in the field of diversion is the public prosecutor, but it may also be
applied or offered by the court.
I concentrate on diversion by the public prosecutor because this report deals with measures enabling the
avoidance of a court trial.
Legal prerequisites for application of diversion are:the crime in question is not a petty offence and also not one requiring traditional criminal penalties in
the interest of special and general prevention;
the offence has to fall within the jurisdiction of the district court or of the single judge at the regional
court (Landesgericht); this basically means that the offence is to be sanctioned by not more than five
years of confinement;
the offence falls under the remit of the public prosecutor;
crimes resulting in fatalities are excluded from diversion;
the guilt of the suspect should not be severe;
the public prosecutor deems the circumstances of the case clear and settled with no outstanding
evidence; andthe suspect should voluntarily accept the diversion offer.

5 See E.E. Fabrizy, Die Österreichische Strafprozessordnung, Manz Verlag, Wien 2004, p. 173-198.

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The CCP provides four different measures of diversion:• payment of an amount of money (diversion fine);• community service;• determination of a probationary period (1-2 years) possibly combined with supervision of theprobationer and/or the compliance with obligations; and• victim offender mediation (which actually means out of court conflict resolution).
According to the CCP, the consent of the victim is an essential precondition for Victim Offender Mediation(VOM). This declaration of consent, however, is not necessary if it is refused on grounds that are not to betaken into consideration within criminal proceedings, like retribution or revenge.
Conflict resolution is carried out by specially trained social workers (mediators). The mediator informs
the public prosecutor about the progress made as well as about the outcome of the conflict resolution. The
decision whether the VOM has been successful as a prerequisite for the waiver of the prosecution, has again
to be made by the prosecutor. The public prosecutor does not demand in advance a specific procedure or a
specific outcome of the VOM. The participants, as well as the mediators, are free to decide upon their way ofsolving the conflict. Apart from the monetary payment, VOM is the only diversion measure where the publicprosecutor may additionally require the payment of a lump sum up of up to €145,-.
To stress the importance of restorative elements within criminal proceedings, the Austrian legislature
has decided that the other diversion measures (the diversion fine, community service and the probationary
period) must be combined with a compensation order.

IV. CONCLUSION
As we have seen, there exists a large set of diversionary measures in the various procedural criminal law
legislations of the Western European countries. The main aim of these diversionary measures is to reducethe caseload of the courts by avoiding court trials for trivial or less severe criminal cases. It gives criminal
courts more room for an in-depth investigation of the truth at the court session in the most serious cases.
Many of the diversionary measures also aim to serve as an alternative to imprisonment. This is inparticular the case for diversionary measures such as mediation, community service, financial settlement or
the order to participate in a training course which in many systems can be imposed by the public prosecutor
or which may be proposed by the public prosecutor and imposed by a judge in a non-full-fledged court
procedure.
In many cases indeed diversionary measures may lead to a reduction of the prison population but it isdifficult, if not impossible, to determine whether these non-custodial sanctions actually have this function.
Other circumstances such as increased crime could lead to more, and to more severe, prison sentences sothat an overall reduction in incarceration cannot be determined.
Another question is whether the measures applied in order to avoid a trial have an effect on crime rates.
Some would argue that the diversionary measures, because of their leniency, do not deter people fromcommitting offences. Others would argue that there is no clear empirical evidence that the degree of
imprisonment is decisive for the general level of crime control in society. Based on published research it
may thus be that high rates of imprisonment do not curtail crime in general nor do low rates encourage
crime.6
But one conclusion may be drawn from the use of diversionary measures: reducing the number of casesthat have to be processed in the trial phase decreases the workload of the courts which in many countries
are overburdened. Diversionary measures give the courts room to concentrate on cases which deserve fullcourt attention.

6 See U. Zvekic, Alternatives to Imprisonment in Comparative Perspective, UNICRI, Nelson-Hall Publishers, Chicago 1994, p. 8-9.

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