Diversions in Criminal Proceedings: What Types Are There, and When Can They Be Used?

Brief Overview

Diversion in criminal proceedings serves to resolve appropriate criminal cases more quickly, without a full trial and often without a formal conviction. Most commonly, this involves conditional suspension of criminal prosecution, a settlement, or conditional deferral of the filing of a motion for punishment. A plea agreement stands apart; while it simplifies the proceedings, it results in a conviction. A criminal order also proceeds without a trial, but it constitutes a conviction and imposes a sentence. The conditions vary depending on the severity of the offense, the defendant’s attitude, compensation for damages, and the interests of the victim.

What Are Diversion Programs in Criminal Proceedings

When a crime is committed, the common perception is straightforward: the police investigate the case, the prosecutor files charges, the court conducts a trial, and finally, it issues a verdict. In practice, however, criminal proceedings do not always follow this exact path.

In appropriate cases , the court or the prosecutor may use a procedure that simplifies and expedites the proceedings while preserving their purpose: the protection of society, the redress of harmful consequences, and a fair resolution for both the victim and the accused.

Diversion does not mean that a crime is “swept under the rug.” On the contrary— the conditions typically include a confession or statement by the accused, compensation for damages, the return of unjust enrichment, consent to a specific procedure, and often a probationary period as well. If the accused fails to meet these conditions, the proceedings may continue.

Not all simplified procedures lead to the same outcome. Some result in the criminal prosecution being discontinued and the accused not being convicted. Others, on the other hand, end with a conviction, but without a traditional trial. This is a fundamental difference, for example, between conditional discontinuation of criminal prosecution and a summary judgment.

In practice, the following procedures are most commonly used:

• conditional suspension of criminal prosecution,
• settlement,
• conditional deferral of filing a motion for punishment,
• plea agreement,
• summary judgment,
• discontinuation of criminal prosecution in juvenile cases.

The term “diversion” is not defined in the Criminal Procedure Code as an exhaustive list with a single precise definition. Therefore, it is important to distinguish whether we are referring to diversion in the narrower sense—that is, as an alternative to a conviction—or in the broader, simplified sense of resolving a case without a full trial.

Conditional Suspension of Criminal Prosecution

Conditional suspension of criminal prosecution is one of the most common forms of diversion. It is used in proceedings involving misdemeanors. According to the Criminal Code, a misdemeanor is any negligent criminal offense, as well as any intentional criminal offense for which the law prescribes a prison sentence with a maximum term of up to five years.

Under Section 307 of the Criminal Procedure Code, a court—or, during preliminary proceedings, a public prosecutor—may conditionally suspend criminal prosecution if the accused consents, has confessed to the offense, has compensated for the damage or entered into an agreement to do so, has surrendered unjust enrichment or taken steps to do so, and, in light of the accused’s character, past conduct, and the circumstances of the case, such a decision can be considered sufficient.

Typically, this will apply to situations where the accused has committed a less serious offense, acknowledges their responsibility, is attempting to remedy the consequences, and there is no reason to believe they will continue to engage in criminal activity. Examples include less serious property crimes, a traffic accident with criminal implications, or a conflict in which the defendant quickly compensated for the damage.

The decision specifies a probationary period. Typically, it lasts from 6 months to 2 years. If it is necessary to impose additional conditions—such as a commitment to refrain from certain activities or to pay a sum of money designated to assist victims of crime—the probationary period may last from 6 months to 5 years.

The defendant may also be subject to reasonable restrictions and obligations, supervision, the requirement to participate in an appropriate program, or a commitment to refrain from certain activities. In the case of traffic offenses, for example, a commitment to refrain from driving motor vehicles is commonly imposed.

If the accused leads a law-abiding life during the probationary period and fulfills the imposed obligations, the case is closed. If the accused violates the conditions, criminal prosecution may continue. Both the accused and the victim may file an appeal with suspensive effect against a decision to conditionally suspend criminal prosecution; if the court has made the decision, the public prosecutor also has this right.

In practice, the biggest mistake is to assume that a conditional suspension will be granted automatically if the accused has no criminal record. Simply having no prior convictions is not enough. Compensation for damages, the defendant’s attitude toward the offense, the specific circumstances of the crime, and whether the criminal justice authorities believe that such a course of action is truly sufficient are also important factors.

Penal Order

A criminal order is a swift court decision issued without a trial. In practice, it is often discussed in conjunction with diversion programs because it also saves time and does not involve the traditional presentation of evidence in court. Legally, however, it is important to emphasize that a criminal order is in the nature of a conviction. It is therefore not a dismissal of the case without a conviction.

A single judge may issue a criminal order in proceedings for a misdemeanor if the facts of the case are reliably proven by the evidence presented. Only certain types of penalties may be imposed through a criminal order. These include, for example, a suspended prison sentence, a fine, community service, a prohibition on certain activities, house arrest, forfeiture of property, a residence restriction, or a ban on attending sporting, cultural, and other social events.

A criminal order may arrive by mail and often comes as a surprise to the accused. However, it is not true that nothing can be done about it once it is issued. An objection to a criminal order may be filed within 8 days of delivery. If the objection is filed in a timely manner by an authorized person, the criminal order is set aside and the court orders a full trial. The court is then not bound by the legal classification, type, or severity of the penalty specified in the original criminal order.

This is an important strategic decision. An objection may lead to a better outcome, but it also opens the door to a full trial. The defendant should therefore not file an objection automatically, but only after assessing the case file, the evidence, and the risk of a harsher ruling.

Tip: Never put off filing an objection to a summary judgment “until later.” The eight-day deadline is short and begins when you receive the notice. If you’re not sure whether to file an objection, it’s best to address the matter immediately.

Plea Agreement

A plea agreement is a procedure in which the prosecutor and the defendant negotiate the outcome of a criminal case. The defendant must admit to committing the act for which he or she is being prosecuted, and this admission must be consistent with the evidence gathered to date. Therefore, a mere willingness to “sign something” is not sufficient. The results of the investigation must sufficiently prove that the act occurred, that it constitutes a crime, and that the defendant committed it.

The agreement is negotiated between the prosecutor and the defendant. In cases where defense counsel is required, a defense attorney must be present. The victim must be notified of the proceedings, may assert a claim for compensation for property damage or non-property harm, and the public prosecutor must also take the victim’s interests into account when negotiating the agreement.

The agreement must contain a precise description of the offense, its legal classification, the defendant’s statement, the agreed-upon type and extent of the sentence, any protective measures, and provisions regarding compensation for damages, non-pecuniary harm, or the surrender of unjust enrichment. After signing, the public prosecutor submits it to the court for approval.

In practice, a plea agreement is often beneficial when the evidence is strong, the defendant wishes to settle the matter, and it is possible to negotiate a reasonable sentence as well as compensation for damages. Conversely, it may not be appropriate when the evidence is contradictory or there is a realistic chance of acquittal.

Settlement

A settlement is an alternative to prosecution based on an agreement between the defendant and the victim. Its purpose is to remedy the damage or harm caused by a criminal offense and to terminate criminal proceedings where such a course of action is sufficient given the nature of the case.

Under Section 309 of the Criminal Procedure Code, a settlement may be used in proceedings for misdemeanors. The consent of both the accused and the victim is required. The accused must declare that they committed the act for which they are being prosecuted, and their declaration must be voluntary, serious, and unequivocal. At the same time, they must compensate for or otherwise make amends for the damage or non-pecuniary harm, or take the necessary steps to provide compensation.

The current legislation also provides that the accused must compensate at least 30% of the damage or non-pecuniary harm caused and commit to repaying the remainder to the victim within an agreed timeframe. A similar rule applies to the surrender of unjust enrichment. This is practically significant in cases where the accused is unable to pay the entire amount immediately but is able to make installment payments.

In more serious cases, a condition may also be the payment of a sum to the state for financial assistance to victims of crime. This amount must not be manifestly disproportionate to the seriousness of the offense.

A settlement is particularly appropriate where the main issue is the damage or harm suffered by the victim and both parties are able to reach an agreement. Typically, this may involve property offenses, damage to another person’s property, certain conflicts between acquaintances, or situations where the defendant apologizes to the victim and actually remedies the damage.

Once the settlement is approved, criminal prosecution is discontinued. Furthermore, the decision approving the settlement has the same legal effect as a final judgment with respect to the agreed-upon obligation to compensate for the remaining damage or to return the remaining amount of unjust enrichment.

It is important for the victim not to accept vague promises. The agreement should clearly specify the amount, due date, payment installments, and the consequences of non-compliance. For the accused, it is important not to sign a commitment that they cannot realistically fulfill.

Conditional Deferral of Filing a Motion for Punishment

Conditional deferral of filing a motion for punishment is used in summary preliminary proceedings. This refers to a situation where, instead of filing a motion for punishment, the public prosecutor decides to conditionally defer its filing.

The conditions are similar to those for the conditional suspension of criminal prosecution. The suspect must confess to the offense, compensate for the damage or enter into an agreement to do so, surrender any unjust enrichment or take steps to surrender it, and must consent to the conditional deferral of the motion for sentencing. At the same time, such a decision must be sufficient in light of the suspect’s character, their past conduct, and the circumstances of the case.

The probationary period ranges from 6 months to 2 years. If the decision is accompanied, for example, by an obligation to refrain from certain activities or by the payment of a sum of money intended to assist victims of crime, the probationary period may last from 6 months to 5 years.

The suspect may be subject to reasonable restrictions and obligations, supervision, or, in the case of individuals close in age to juveniles, certain educational measures. If the suspect behaves satisfactorily during the probationary period, the case will not be referred to court. If the suspect does not behave satisfactorily, the public prosecutor proceeds in the standard manner and may file a motion for punishment.

Both the suspect and the victim may file an appeal with suspensive effect against a decision to conditionally defer filing a motion for punishment.

In practice, this may apply, for example, to minor offenses that are quickly resolved, where the suspect does not deny the act, has compensated for the damage, and it is not necessary to immediately refer the case to court. It functions as a warning combined with specific obligations.

Discontinuation of Criminal Prosecution in Juvenile Cases

Special rules apply to juvenile offenders under Act No. 218/2003 Coll., on the Juvenile Justice System. Proceedings involving juveniles are intended to place greater emphasis on educational guidance, rehabilitation, and addressing the juvenile’s family and social circumstances.

The Act on Juvenile Justice explicitly provides for special procedures in criminal cases involving juveniles. These include conditional deferral of the filing of a motion for punishment, conditional suspension of criminal prosecution, settlement, and withdrawal from criminal prosecution. These procedures may be applied only if the suspicion of an offense has been sufficiently established, the juvenile is prepared to accept responsibility, address the causes of their conduct, and contribute to remedying the harmful consequences.

Discontinuation of criminal prosecution under Section 70 of the Juvenile Justice Act is applicable to offenses for which the Criminal Code prescribes a prison sentence with a maximum term not exceeding 3 years. The juvenile court—and, during preliminary proceedings, the public prosecutor—may discontinue criminal prosecution on the grounds of a lack of public interest in further prosecution if the prosecution is not expedient and punishment is not necessary to deter the juvenile from further criminal activity.

It is also important to note that a juvenile who has not yet reached the age of 18 cannot be issued a summary judgment or enter into a plea agreement.

In practice, when dealing with juveniles, authorities often assess not only the act itself but also the juvenile’s personality, family background, school attendance, past behavior, willingness to compensate for the damage, an apology to the victim, and cooperation with the Probation and Mediation Service or the social and legal protection of children authority.

Typically, this applies to less serious offenses where the juvenile has committed a first-time offense, has made restitution, has completed an appropriate program, and it is clear that continuing criminal prosecution would not be effective.

Advantages of Diversion in Criminal Proceedings

Diversion is significant for courts, prosecutors, defendants, and victims alike. Its main advantage is a faster and less burdensome resolution of the case. It is not necessary to conduct a full trial, question all witnesses, and wait for a verdict after the standard presentation of evidence.

For the victim, the greatest benefit may be faster compensation for damages. Particularly in cases of settlement or conditional suspension of criminal prosecution, the issue of whether the accused has compensated for the damages, entered into a compensation agreement, or taken the necessary steps to pay the damages is addressed.

For the accused, the advantage may be avoiding lengthy proceedings and, in some cases, a conviction. However, this is not always the case. With a criminal order and a plea agreement, one must expect that the outcome will be a conviction.

Practical Benefits:

• a quicker resolution of the criminal case,
• less psychological and time-related burden,
• greater scope for compensation for damages,
• the possibility of preserving the educational and preventive purpose of the proceedings,
• relief for the courts in less serious cases,
• in certain cases, resolution of the case without a conviction.

At the same time, however, diversion is not “free.” The defendant must often fulfill specific obligations, pay damages, comply with a probationary period, or accept restrictions. If the defendant fails to comply with these obligations, the proceedings may revert to the standard process.

When It Makes Sense to Consider Diversion

It makes sense to consider diversion especially when the case involves a less serious offense, the evidence is not favorable to the accused, the damages can be remedied, and the accused is prepared to take responsibility.

Typical situations may include:

• a first offense,
• a less serious property offense,
• a traffic accident with criminal implications,
• damage to another person’s property,
• a misdemeanor for which damages have been paid,
• a case involving a juvenile where a rehabilitative approach is more appropriate.

Conversely, diversion may not be appropriate where the defendant did not commit the offense, the evidence is weak, the legal classification is disputed, or accepting responsibility would have disproportionate future consequences. In such a situation, it may be better to insist on a full defense.

The most common mistake in practice is that the accused focuses solely on the question, “Will I get a lighter sentence?” They should also ask whether they will be convicted, whether there will be a criminal record, what obligations they are assuming, what damages are being acknowledged, and what will happen if they fail to meet the agreed-upon conditions.

Summary

Diversion programs in criminal proceedings allow for the resolution of suitable cases more quickly and often more sensitively than through a traditional trial. However, this is not an automatic right. The court or prosecutor always assesses the nature of the offense, the defendant’s character, their past conduct, compensation for damages, the interests of the victim, and whether such a procedure is sufficient to achieve the purpose of the criminal proceedings.

Conditional suspension of criminal prosecution and settlement agreements may lead to the case being closed without a conviction. Conditional deferral of the filing of a motion for punishment serves as a warning in summary preliminary proceedings. A plea agreement simplifies the proceedings but results in a conviction. A summary judgment is a quick decision without a trial, but it also constitutes a conviction.

Before agreeing to any of these procedures, it is advisable to have the evidence, legal classification, amount of damages, and possible consequences assessed. A quick resolution may be advantageous, but only if it is appropriate for the specific situation.