Diversions in criminal proceedings: what types do we have and when can they be used?

Diversions in criminal proceedings are an opportunity to avoid a main trial in court. This is a relatively new concept, which appeared in the Czech Republic only in the 1990s. It brings with it a number of advantages for busy courts, but also for the offenders themselves. In this article, we will take a closer look at all six types of these diversions.

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If a criminal offence is committed, a criminal prosecution is initiated. This then traditionally leads to a main trial before a court with subsequent sentencing. However, this process is very administratively demanding and also expensive. For this reason, so-called diversions in criminal proceedings have arisen. These allow a criminal case to be dealt with outside the standard court process, saving the courts time and the state money.

However, they cannot always be used. They are decided by the court or the public prosecutor in the context of pre-trial proceedings, especially in cases where a fair solution can be reached without the need to conduct a full criminal trial. Diversions are thus used more for less serious crimes and where the likelihood of the offender’s rehabilitation is higher and where an amicable resolution of the conflict between the offender and the victim can be achieved.

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There are six types of diversions in criminal proceedings. Let’s take a closer look at each type:

Conditional discontinuance of prosecution

Aconditional discontinuance of criminal prosecution is a legal institution that allows the discontinuance of criminal prosecution under certain conditions for a specified period of time. It is used in cases where it is foreseeable that a suspended prison sentence would be imposed on the person being prosecuted and that the accused will lead an orderly life in the future.

The conditions for conditional discontinuance of criminal prosecution include:

  • Amisdemeanour has been committed: Suspended prosecution is only possible for misdemeanours, i.e. negligent offences and intentional offences with a maximum sentence of up to 5 years.
  • Theaccused confessed: The accused has confessed to the crime and agrees to a conditional suspension of prosecution.
  • Compensation for damage: The accused has compensated for the damage caused or entered into an agreement to compensate for it.
  • Theaccused has handed over unjust enrichment: The accused has handed over the unjust enrichment obtained through the crime.
  • There are good prospects: the court or the prosecutor has decided that the accused has the prospects of leading a good life without further criminal activity.

A probationary period is also always imposed when the prosecution is suspended. This is the period of time during which the accused must comply with the conditions. These may include abstaining from certain actions and activities (e.g. not seeing certain people and having to attend a resocialisation programme). It is set at six months to two years. If the accused meets all the conditions, the prosecution is definitively discontinued and the accused is treated as if he had not been convicted.

Tip: We have discussed the conditional suspension of criminal prosecution in detail in our next article. Read more about how to apply for it or how to defend yourself as a victim.

Criminal warrant

Acriminal warrant is a decision of a court in criminal proceedings that is issued without a trial. Here, too, it is necessary that the specified conditions are met:

  • Thefacts must be proved: a criminal order can only be imposed if there is clear evidence that the accused committed the offence.
  • One of the specified penalties will be imposed: A criminal order can only be imposed for penalties specified by law. These include, for example, a fine or forfeiture of property.

Tip: Read more about the criminal order and how to appeal it in the next article.

Agreement on guilt and punishment

A pleabargain consists of the defendant signing an agreement in which he or she agrees to plead guilty in exchange for a more lenient approach to sentencing. A guilty plea by the accused is a condition. It cannot be concluded in the case of particularly serious crimes (i.e. with a minimum sentence of 10 years’ imprisonment ) or if the accused is prosecuted as a fugitive.

Tip: We have a separate article on the topic of plea bargaining. In it, you will learn when it can be concluded, what to do and how it is approved.

Straightening

A settlement is based on the accused and the victim reaching an agreement that will repair the damage or injury caused. The interest of the victim is paramount in this case, the punishment of the accused is secondary. Settlement can be reached if certain conditions are met:

  • Settlement can only be usedfor misdemeanours, i.e. negligent offences and intentional offences for which the law provides for a prison sentence not exceeding 5 years.
  • Admission of guilt: the accused must openly admit that he has committed the act which is the subject of the criminal proceedings.
  • Consent of both parties: both the accused and the victim must agree to a settlement.
  • Compensation for the damage or injury: The accused must compensate for the damage or injury caused, enter into an agreement with the victim to compensate for the damage or injury, or take other necessary measures to compensate for the damage or injury. This may include financial compensation, an apology or other compensatory measures.
  • Depositing a sum of money: the accused must also deposit a sum of money to help victims of crime or for public benefit. This amount is set by the court or the public prosecutor and depends on the individual case.
  • Surrender of unjust enrichment: the accused must surrender any unjust enrichment obtained as a result of the offence.

Suspension of the application for punishment

A conditional stay of the filing of a motion for punishment allows the prosecutor to postpone the filing of a motion for punishment of the accused under certain conditions (these are virtually identical to those of the above-mentioned conditional stay of prosecution). This institution is intended to give the accused a chance to correct his behaviour without the need to continue the criminal proceedings. It is therefore a kind of warning given to the accused before his case is brought before the court.

Unlike a suspended sentence,there is no need for the accused’s consent and the probationary period can be up to five years. However, a complaint with suspensive effect can be lodged against the decision.

Tip: Has the court ruled against you and do you want to defend yourself? We will assess your chances of success and take care of preparing an appeal, appeal or constitutional complaint depending on the proceedings and the stage they are at.

Withdrawal from prosecution in youth matters

This is a special departure from criminal proceedings that can only be used for juvenile offenders, i.e. persons under the age of 18. It may be used if the conditions are met:

  • The offence: it must be an offence for which the upper limit of imprisonment does not exceed 3 years.
  • Lack of public interest: There is no public interest in the further prosecution of the accused.
  • Inappropriateness: the prosecution must be found to be inappropriate.
  • Assessment of the circumstances: The personality of the juvenile, his previous conduct, family background and the circumstances of the offence itself are also taken into account. It must be concluded that the punishment is not necessary to prevent the accused from committing further offences.

In practice, diversion is particularly appropriate in cases where the juvenile offender has completed a probation programme, made restitution or received a cautionary warning.

Advantages of diversion in criminal proceedings

As we announced in the introduction, diversions in criminal proceedings carry with them a number of benefits for the court system and the offenders themselves:

Benefits to the court system:

  • Cost and time savings: diversions allow criminal cases to be resolved more quickly without the need for costly and time-consuming court proceedings.
  • Relief for the courts: They reduce the number of cases that must be heard by the courts, which contributes to their more efficient operation.
  • More efficient justice: They allow resources and attention to be focused on more serious offences that require a full trial.

Benefits for offenders:

  • Lighter penalties: offenders often face lighter penalties than in traditional court proceedings.
  • Preservation of anonymity: Diversions allow offenders to avoid public court proceedings, which helps protect their privacy and reputation.
  • Faster case closure: Diversions allow offenders to close their case more quickly, which contributes to a quicker return to normal life.

Summary

Diversions allow criminal cases to be resolved outside of the normal court process, saving time and costs. The main institutes include conditional discontinuance of prosecution, plea bargaining, sentencing order, settlement, conditional deferral of filing a petition for punishment and diversion in youth cases. Each of these institutes has its own specific conditions and purposes, which are set out for the effective and fair handling of different types of criminal cases.

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Author of the article

JUDr. Ondřej Preuss, Ph.D.

Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.

Education
  • Law, Ph.D, Pf UK in Prague
  • Law, L’université Nancy-II, Nancy
  • Law, Master’s degree (Mgr.), Pf UK in Prague
  • International Territorial Studies (Bc.), FSV UK in Prague

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