Suspended prosecution. When can you use it?

What does a conditional suspension of prosecution mean

Suspended prosecution is a legal institution that allows the suspension of criminal prosecution of an accused for a certain period of time under certain conditions. It is a provisional solution and a probationary period is provided for.

This procedure 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 a proper life in the future. In this case, the continuation of the criminal prosecution is considered unnecessary, as its conditional discontinuance represents a simpler method.

The whole idea is based on the assumption that for some persons the prosecution itself is believed to have an educational effect. At the same time, it also simplifies the whole process, which ultimately saves money and time for the law enforcement authorities.

Diversions in criminal proceedings

Conditional discontinuance of criminal prosecution is one of the diversions in criminal proceedings. Diversions are alternative procedures for resolving criminal cases outside of traditional court proceedings. They aim to make criminal proceedings more efficient and humanised, often with an emphasis on reforming the offender and compensating the victim without the need for a full trial. The most common forms of diversion in criminal proceedings include:

• Settlement: Settlement is possible in cases of less serious crimes where the accused agrees to pay damages or meet some other condition. If the settlement is successful, the criminal proceedings are dismissed.
• Conditional deferral of the application for punishment: This allows the prosecutor to conditionally defer the application for punishment for less serious offences if certain conditions are met (e.g. payment of damages or commitment to certain behaviour).
• Plea bargain: This allows the accused and the prosecutor to enter into an agreement in which the accused pleads guilty to the offence and agrees on the sentence. This agreement is then submitted to the court for approval.

A special situation is the waiver of punishment. This is an exceptional situation where the court decides not to impose punishment on the accused even though he has been found guilty of the offence. The reasons for waiving punishment may vary, but most often they are cases where the offender regrets his or her offence, is interested in reform, has led an orderly life and the offence is only a misdemeanour. The age or health of the accused may also speak in favour of waiving punishment. In any case, the decision to waive punishment may be taken at the investigation stage or even after the criminal proceedings have been initiated. If the court decides to waive punishment, it may still order, for example, supervision or an obligation to undergo a rehabilitation programme.

Conditions for conditional discontinuance of criminal prosecution

A conditional discontinuation of criminal prosecution is possible if the following conditions are met:

• Itis a misdemeanour: The prosecution concerns a misdemeanour, which includes all negligent offences and intentional offences with a maximum limit of 5 years. This is because this institution is intended mainly for less serious offences, where the accused can be expected not to continue criminal activities in the future and the conditional suspension will be a sufficient motivation for correction.
• The accused has confessed and agrees: the accused must agree to the conditional discontinuance of the prosecution and must confess to the offence. This is because the agreement and confession show the accused’s willingness to cooperate with the case and to admit guilt, which is crucial to achieving rehabilitation.
• The accused has made restitution: The accused must make restitution for the damage caused by the crime, enter into a compensation agreement with the victim, or take other necessary measures to make restitution. Compensation is an important step in restoring justice and compensating the victim for the losses suffered. By taking this step, the accused demonstrates his desire to make amends for the consequences of his conduct.
• The accused has given away unjust enrichment: the accused must give away the unjust enrichment obtained by the crime (e.g. a stolen watch from a jewellery shop). Again, this is a step towards restoring justice and compensating the victim for the losses suffered.
• The accused is in a good position: the court or the prosecutor must take into account the accused’s own person, his or her previous life and the circumstances of the case, and must be justified in considering a conditional suspension of the prosecution sufficient. This assessment ensures that the conditional suspension of prosecution is proportionate and fair in the light of the overall situation of the accused and the particular circumstances of the case. It takes into account whether the accused is capable of leading a proper life without further criminal activity.

Probationary period for conditional discontinuance of criminal prosecution

Suspended prosecution is always accompanied by a probationary period of six months to two years. This is the period during which the accused must comply with the conditions. These may include refraining from certain acts and activities (e.g. not seeing certain people and having to attend a resocialisation programme).

During this period, the accused is monitored to ensure that he or she leads a good life and fulfils all the obligations imposed. The probationary period thus provides a timeframe for verifying whether the accused is actually correcting his behaviour. If the accused fulfils all the conditions, the prosecution is definitively discontinued and the accused is treated as if he had not been convicted. If the accused fails to meet the conditions, the prosecution continues. Likewise, if the accused violates the conditions during the probationary period or commits a new offence, the prosecution may be reopened.

How to apply for a conditional suspension of prosecution

A conditional discontinuance of prosecution is a process that requires certain conditions to be met, which we outlined in Chapter 3. Therefore, if you, as a defendant, want to apply for a conditional suspension of prosecution, you should do the following:

1. Confession to the crime: The accused must plead guilty. Without a confession, a conditional dismissal of the prosecution is not possible.
2. Compensation for damages and release of unjust enrichment: the accused must compensate for the damage caused by the offence or enter into an agreement with the victim to compensate for the damage. He must also surrender the unjust enrichment obtained by the offence.
3. Application for conditional discontinuance of prosecution: The accused (or his defence lawyer) must apply for conditional discontinuance of prosecution. This request can be made either to the prosecutor or to the court. This may also be an oral request.
4. Consent to conditions: The accused must agree to the conditions of the conditional discontinuance of the prosecution, which may include a probationary period and other obligations (e.g. community service, therapy sessions, etc.).
5. Submission of the application: The application is submitted to the public prosecutor or the court, which assesses whether all the conditions are met and whether a conditional suspension of the prosecution is appropriate.

How to defend yourself as a victim

It is not necessary to have the victim’s consent for a suspended prosecution to take place. However, if you are in this role and you disagree with the prosecutor’s or court’s decision, you can file a complaint with suspensive effect.

The complaint must be lodged with the authority that issued the contested order within three days of notification or service of the order. The complaint may be submitted in writing, orally on the record or electronically. The authority which issued the decision shall decide on the complaint only in the event of self-medication, i.e. if it upholds the complaint in full. In all other cases, the decision shall be taken by the superior authority designated by the Criminal Procedure Code.

The authority deciding on the complaint shall first examine its admissibility, i.e. whether it was lodged by a competent person and in good time. It may then examine the individual statements. The complaint shall again be decided by way of a decision. In that order, the complaint may be dismissed on substantive or formal grounds, or the superior authority may set aside the contested order and either decide the matter afresh itself or order the authority against whose decision the complaint is directed to hear and decide the matter afresh.

Summary

Suspended prosecution is an effective legal instrument for dealing with minor offences, which allows the suspension of the prosecution of an accused person under certain conditions. This institute brings advantages for both the accused and the judicial system, saving time and resources. Conditions such as the accused’s confession, compensation for damages and the release of unjust enrichment are key. However, it should be borne in mind that cooperation with a lawyer is important for the successful use of this institution.