The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
The organisation of the prosecution service
The Office of the Prosecutor-General in Helsinki acts as the central administrative authority of the prosecution service, and there are seventy local prosecution units in each administrative district of the State. Prosecutors are thus organised on two tiers.
Most prosecution units belong to a joint operational area. The point of this concept is that the prosecution units in one joint operational area can provide mutual support and assistance to another. The latter is especially efficient in situations where the caseload of one unit is so heavy that it cannot cope with it on its own, or where there is a need to balance the workloads of the units otherwise. There are sixteen joint operational areas in Finland.
There are two different acts for prosecutors (the Act of Public Prosecutors and the Act of District Prosecutors). The Code of Judicial Procedure Act (CJP) and the Criminal Investigation Act (CIA) contain specific provisions on the role and powers of the prosecutor during the proceedings and criminal investigations. The Degree of the Prosecutor-General regulates the powers of the Prosecutor-General and his office. He also appoints public prosecutors. Three ranks of prosecutors can be distinguished:
- Prosecutor-General, deputy Prosecutor-General;
- State prosecutors; and
- District prosecutors and junior (assisting) prosecutors.
The Office of Prosecutor-General has thirteen state prosecutors (2003), who are competent to operate anywhere in the country. Usually, they handle cases with wider significance to the community – a few dozen every year. The state prosecutors also handle those cases that are heard by the Court of Appeal as a case in first instance. These include, e.g., charges against certain high-ranking public officials for offences in office.
In addition, it is for the state prosecutors to prosecute cases where the Ministry of Justice, the Chancellor of Justice or the Parliamentary Ombudsman has decided that a charge is to be brought.
More recently, the Prosecutor-General’s office has established a specific system of key-prosecutors to function in certain fields which require special skills and expertise (for example economic crime, environmental law, sexual offences etc). The key-prosecutors (around ten to fifteen in numbers) function as trainers and contact-persons for other prosecutors in their fields. They are competent to operate anywhere in the country in their own field.
The Prosecutor-General is the highest authority in the prosecution service. His statutory duties include:
- the direction and development of the prosecution service;
- the supervision of subordinate prosecutors;
- the supervision of the implementation of a proper prosecution policy;
- the appointment of prosecutors;
- the issuing of general instructions and guidelines for prosecutors;
- the taking over a case of a subordinate prosecutor, or assigning a case to a subordinate prosecutor when he considers a charge ought to be brought;
- the representation of the prosecutors in the Supreme Court; and
- the prosecution in the High Court of Impeachment if the Parliament decides that charges are to be brought against the President of the Republic or against a Member of the Government.
The legality principle
In Finland, the legality principle governs criminal proceedings. The prosecutor has the duty to prosecute when sufficient evidence of an offence and the offender are at hand. This rigidity however, is softened primarily by two features of the criminal law system: complainant offences and the statutory rules of non-prosecution.
For complainant offences the public prosecutor has the power to prosecute the offender only when the complainant requests this. However, most offences are classified as non-complainant offences or offences under public prosecution. In respect of such offences, the power of the public prosecutor to bring the suspect to trial does not dependent on the opinion of the complainant. In these cases, the public prosecutor is obliged to bring the suspect to trial as soon as there are probable reasons to suspect that he is guilty of an offence.
The rigid requirements of the legality principle in prosecution have been softened too by granting the prosecutor a right to non-prosecution. However, the prosecutor may waive prosecution only on the grounds listed in the CJP.
For reasons of conceptual clarity it is necessary to make a clear distinction between two-types of non-prosecution: decisions based on procedural facts such as lack of evidence and statute of limitations, where there are legal obstacles for prosecution (procedural non-prosecution) and cases when there is enough evidence to support prosecution, but the prosecutor chooses to drop the charge for other reasons, often related to the petty nature of the offence or the young age of the offender (diversionary non-prosecution).
Traditionally, the scope of (diversionary) non-prosecution has been quite narrow, as compared to many other countries. In the beginning of the 1980s, only about 2% of all criminal cases led to non-prosecution. However, in 1991 the scope of non-prosecution was extended through a law reform which tripled the number of offences diverted from the court proceedings due to non-prosecution. These new provisions concerning non-prosecution define the criteria which crime to prosecute and which not.
Section 3 of the Act on Public Prosecutors gives the Prosecutor-General the authority to issue general guidelines and instructions on prosecution. One major guideline concerns the use of discretion in non-prosecution and the form and content of different types of prosecutorial decisions. Other guidelines have dealt with specific groups of cases (crimes committed by police-officers and military offences). Major law reforms also may result in additional guidelines by the Prosecutor-General.
Duties and powers of the prosecution service
The main duties of the prosecution service are:
- taking part in pre-trial investigation;
- consideration of charges;
- making decisions of non-prosecution;
- bringing a charge and prosecution of the case;
- representation of the injured party (claim for damages);
- appeal, and
- penal orders.
In the representation of the injured party, the public prosecutor has an obligation to pursue the civil claims on the request of the victim. He is, however, only required to do so if this is possible without major inconvenience, and if the claim is not obviously ill-founded. This right can be seen in the light of fundamental rights also – a fair trial for the victim requires an easily accessible and cost effective procedure for him.
Not only the prosecutor but also the victim may have a right to press charges. In case of complaint offences, the victim has an independent primary right to do so. The right of the injured party to bring a charge in non-complainant offences is defined in Sect. 14 of the CJP: ‘The injured party may bring a charge for an offence only, if the public prosecutor has decided not to prosecute’. In these cases the victim has, in other words, a subsidiary right to prosecute.
In addition, the injured party has the right to endorse a charge brought by the public prosecutor or another injured party, and present new circumstances in support of the charge. An injured party may lodge an appeal against a decision made in the case regardless of whether he has made a statement in the case.
Furthermore, Section 15 CJP grants the injured party a right to take up the prosecution of a charge which has been abandoned by the public prosecutor or another injured party. If the injured party assumes the prosecution of the charge, he shall notify the court of the same in writing within 30 days of receiving notice of the abandonment. If the injured party does not assume prosecution, he shall forfeit his right to bring a charge. In this event, the charge is on the request of the defendant to be rejected by judgement.
Prosecutors have the power to issue summary penalties, i.e. to impose fines without trial in cases where the maximum penalty provided for the offence does not exceed the imposition of a fine or imprisonment for six months. For the most part, summary penalties are used in cases involving road traffic violations.
The prosecutor may decide not to prosecute even if there is a prima facie case, for instance because of the minor significance of the offence or the youth of the offender. This type of non-prosecution (diversionary non-prosecution) is normally only applicable to offences that, if brought to trial, would be punished by a small fine.
The prosecutor may interrupt the investigations on the initiative of the head of the investigation.
In general, prosecution may be dismissed on the following grounds:
- investigations show, that no crime has been committed (the act does not fulfil the statutory elements of the offence);
- there is not enough evidence for prosecution (no ‘probable cause’);
- the prosecutor lacks the right to prosecute (in complainant offences the victim will not press charges); and
- the maximum time for raising the charge prescribed in the statute of limitations has been exceeded.
The period during which an offence can be prosecuted is limited in time, depending on the seriousness of the offence. The limitation periods are the following: two years, if the statutory penalty does not exceed fines or one year of imprisonment, e.g. petty theft, drunken driving, using of narcotics; five years, if the statutory penalty does not exceed two years of imprisonment, e.g. theft, assault, narcotics offence and other medium range offences; ten years, if the statutory penalty does not exceed eight years of imprisonment, e.g. aggravated theft, rape and robbery; twenty years, if the statutory penalty exceeds eight years of imprisonment, e.g. manslaughter, aggravated narcotics offence and aggravated assault. There is no limitation period, if the statutory penalty is life imprisonment, e.g. murder, some war crimes and some crimes against humanity.
Accountability of the prosecution service
The prosecutor service is basically independent. The Prosecutor-General is the head of all prosecutors and he has no formal superiors. On the other hand, in the organisational structure the prosecution service falls under the Minister of Justice, who has to carry the final political responsibility for the its activities.
In principle, it would be possible that the Minister of Justice be questioned about prosecution policies in Parliament by the opposition. However, in the day-to-day parliamentary work, hearings take place in different sub-committees of the Parliament. In these meetings, the Prosecutor-General or a representative from his office defends or explains the policies adopted (and makes requests for more resources).
Matters of major importance may be settled and discussed between the Ministry of Justice and the Prosecutor-General. Still, the starting point is that Prosecutor-General has very strong independent position. However, before publishing new prosecution guidelines the Minister of Justice must be informed according to the law. In practice this means that, if needed, the contents of the Prosecutor-General's guidelines are discussed with the Ministry of Justice.
The tasks of the prosecution service are defined in the law. The Ministry of Justice has the prosecution service in its budget.
Prosecutors are independent in their work. Section 1.2 of the Public Prosecutors Act states that prosecutors have an independent discretion in cases dealt by them, so they cannot be required to follow instructions.
Mandatory prosecutions and discretionary power
According to the legality principle, prosecution must take place in all cases in which sufficient evidence of guilt of the suspect exists. The rigid requirements of the principle of legality are counterbalanced by the provisions of non-prosecution. The general grounds for non-prosecution are strictly defined in the law. The first two grounds relate to the seriousness (petty nature) of the offence and the young age of the offender (young offenders under the age of eighteen). Thus, the prosecutor can waive the prosecution when no other penalty than a fine is to be expected for the offence, and the offence is deemed to be petty considering the harmfulness of the act or the culpability of the offender. Prosecution is also waived if an offence has been committed by a person under eighteen years of age, when no other penalty than a fine or imprisonment for at most six months is to be expected for the offence, and the offence is deemed to be the result of thoughtlessness or imprudence rather than heedlessness at the prohibitions and commands of law (Sect. 1.7 CJP).
A third ground is non-prosecution based on reasons of equity or criminal policy expediency. This is the case, for example, when trial and punishment are deemed unreasonable or pointless considering the reconciliation between the offender and the complainant, or other action taken by the offender to prevent or remove the effects of his offence, his personal circumstances, other consequences of the offence to him, care taken by social security and health authorities, or other circumstances. In this respect, it should be noted that Finnish law does not recognise the possibility of plea bargaining. This section also covers non-prosecution on the basis of reconciliation and mediation as well as other reparative actions taken by the offender. Victim-offender mediation was specifically included in the law in 1995. Since then, it has quickly gained more and more importance as a ground for non-prosecution.
The fourth grounds for non-prosecution concerns cases where the offender is being charged for several offences and prosecution of this particular offence would have no practical relevance for the sentence.
In addition, there are specific provisions on non-prosecution in connection with certain offences such as drug-offences and tax-offences.
The utilisation of prosecutor discretionary power is harmonised through legal regulations and instructions given by the Prosecutor-General.
When there is no prima facie case or when prosecution is otherwise precluded, e.g. because of the statute of limitations there is ground for non-prosecution due to technicalities.
The Prosecutor-General has given detailed instructions on the content of decisions on non-prosecution. All decisions must be motivated. The general starting point in writing the motivation is: the more serious the case, the more detailed the motivation required.
Settlement out of Court
Annually some 5,000 cases 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 and most 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 the referral of cases and their further processing is concerned. There is no legislation on the organisation of mediation, but plans and proposals are being prepared. The criminal code has also been revised recently, so that it now mentions an agreement or settlement between the offender and the victim as a possible ground for waiving of charges by the prosecutor, the waiving of 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 anyone of the possible parties. Three-quarters of all cases are referred to mediation either by the prosecutor (44%) or by the police (30%); the remainder of cases are initiated by the offender (9%), social authorities (7%), the victim (5%) or other (6%).
In cases where initiative for mediation comes from the prosecutor, the prosecutor sends the case to the mediation office with an announcement that he will decide on the charges (whether to prosecute or not) within a short 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 subject (type of offence), the content of a settlement (how the offender has consented to repair the damages), place and date of the restitution as well as the consequences for a breach of the contract.
In complainant offences mediation will often put an end to the matter even before it gets to the court. In non-complainant offences the prosecutor can drop the charge, if prosecution would seem either unreasonable or pointless due to reconciliation, and non-prosecution does not violate an important public or private interest. The latter condition excludes more serious offences from non-prosecution. In general, if non-prosecuting would endanger the victim’s right to get damages compensated, this option would be out of question.
Of course, the parties may settle the case also without the support of community mediators.
There are no formal restrictions or limits concerning settlement out of court, nor are there restrictions on cases eligible for mediation. Mediation, as such, is no guarantee that the case will be dropped. Therefore, there is no need to restrict the scope of crimes eligible for mediation. Still, there has been a lot of controversy whether cases of domestic violence are suitable to be handled by lay-mediators. The Prosecutor-General has also given instructions to hold a restrictive view on non-prosecution in cases of family violence. The motivation for these guidelines lies in the fear that the victim may settle the case under threat.
The Relation between the Public Prosecutor and the Minister of Justice
The organisation of the prosecution service
The Office of the Prosecutor-General in Helsinki acts as the central administrative authority of the prosecution service, and there are seventy local prosecution units in each administrative district of the State. Prosecutors are thus organised on two tiers.
Most prosecution units belong to a joint operational area. The point of this concept is that the prosecution units in one joint operational area can provide mutual support and assistance to another. The latter is especially efficient in situations where the caseload of one unit is so heavy that it cannot cope with it on its own, or where there is a need to balance the workloads of the units otherwise. There are sixteen joint operational areas in Finland.
There are two different acts for prosecutors (the Act of Public Prosecutors and the Act of District Prosecutors). The Code of Judicial Procedure Act (CJP) and the Criminal Investigation Act (CIA) contain specific provisions on the role and powers of the prosecutor during the proceedings and criminal investigations. The Degree of the Prosecutor-General regulates the powers of the Prosecutor-General and his office. He also appoints public prosecutors. Three ranks of prosecutors can be distinguished:
- Prosecutor-General, deputy Prosecutor-General;
- State prosecutors; and
- District prosecutors and junior (assisting) prosecutors.
The Office of Prosecutor-General has thirteen state prosecutors (2003), who are competent to operate anywhere in the country. Usually, they handle cases with wider significance to the community – a few dozen every year. The state prosecutors also handle those cases that are heard by the Court of Appeal as a case in first instance. These include, e.g., charges against certain high-ranking public officials for offences in office.
In addition, it is for the state prosecutors to prosecute cases where the Ministry of Justice, the Chancellor of Justice or the Parliamentary Ombudsman has decided that a charge is to be brought.
More recently, the Prosecutor-General’s office has established a specific system of key-prosecutors to function in certain fields which require special skills and expertise (for example economic crime, environmental law, sexual offences etc). The key-prosecutors (around ten to fifteen in numbers) function as trainers and contact-persons for other prosecutors in their fields. They are competent to operate anywhere in the country in their own field.
The Prosecutor-General is the highest authority in the prosecution service. His statutory duties include:
- the direction and development of the prosecution service;
- the supervision of subordinate prosecutors;
- the supervision of the implementation of a proper prosecution policy;
- the appointment of prosecutors;
- the issuing of general instructions and guidelines for prosecutors;
- the taking over a case of a subordinate prosecutor, or assigning a case to a subordinate prosecutor when he considers a charge ought to be brought;
- the representation of the prosecutors in the Supreme Court; and
- the prosecution in the High Court of Impeachment if the Parliament decides that charges are to be brought against the President of the Republic or against a Member of the Government.
The legality principle
In Finland, the legality principle governs criminal proceedings. The prosecutor has the duty to prosecute when sufficient evidence of an offence and the offender are at hand. This rigidity however, is softened primarily by two features of the criminal law system: complainant offences and the statutory rules of non-prosecution.
For complainant offences the public prosecutor has the power to prosecute the offender only when the complainant requests this. However, most offences are classified as non-complainant offences or offences under public prosecution. In respect of such offences, the power of the public prosecutor to bring the suspect to trial does not dependent on the opinion of the complainant. In these cases, the public prosecutor is obliged to bring the suspect to trial as soon as there are probable reasons to suspect that he is guilty of an offence.
The rigid requirements of the legality principle in prosecution have been softened too by granting the prosecutor a right to non-prosecution. However, the prosecutor may waive prosecution only on the grounds listed in the CJP.
For reasons of conceptual clarity it is necessary to make a clear distinction between two-types of non-prosecution: decisions based on procedural facts such as lack of evidence and statute of limitations, where there are legal obstacles for prosecution (procedural non-prosecution) and cases when there is enough evidence to support prosecution, but the prosecutor chooses to drop the charge for other reasons, often related to the petty nature of the offence or the young age of the offender (diversionary non-prosecution).
Traditionally, the scope of (diversionary) non-prosecution has been quite narrow, as compared to many other countries. In the beginning of the 1980s, only about 2% of all criminal cases led to non-prosecution. However, in 1991 the scope of non-prosecution was extended through a law reform which tripled the number of offences diverted from the court proceedings due to non-prosecution. These new provisions concerning non-prosecution define the criteria which crime to prosecute and which not.
Section 3 of the Act on Public Prosecutors gives the Prosecutor-General the authority to issue general guidelines and instructions on prosecution. One major guideline concerns the use of discretion in non-prosecution and the form and content of different types of prosecutorial decisions. Other guidelines have dealt with specific groups of cases (crimes committed by police-officers and military offences). Major law reforms also may result in additional guidelines by the Prosecutor-General.
Duties and powers of the prosecution service
The main duties of the prosecution service are:
- taking part in pre-trial investigation;
- consideration of charges;
- making decisions of non-prosecution;
- bringing a charge and prosecution of the case;
- representation of the injured party (claim for damages);
- appeal, and
- penal orders.
In the representation of the injured party, the public prosecutor has an obligation to pursue the civil claims on the request of the victim. He is, however, only required to do so if this is possible without major inconvenience, and if the claim is not obviously ill-founded. This right can be seen in the light of fundamental rights also – a fair trial for the victim requires an easily accessible and cost effective procedure for him.
Not only the prosecutor but also the victim may have a right to press charges. In case of complaint offences, the victim has an independent primary right to do so. The right of the injured party to bring a charge in non-complainant offences is defined in Sect. 14 of the CJP: ‘The injured party may bring a charge for an offence only, if the public prosecutor has decided not to prosecute’. In these cases the victim has, in other words, a subsidiary right to prosecute.
In addition, the injured party has the right to endorse a charge brought by the public prosecutor or another injured party, and present new circumstances in support of the charge. An injured party may lodge an appeal against a decision made in the case regardless of whether he has made a statement in the case.
Furthermore, Section 15 CJP grants the injured party a right to take up the prosecution of a charge which has been abandoned by the public prosecutor or another injured party. If the injured party assumes the prosecution of the charge, he shall notify the court of the same in writing within 30 days of receiving notice of the abandonment. If the injured party does not assume prosecution, he shall forfeit his right to bring a charge. In this event, the charge is on the request of the defendant to be rejected by judgement.
Prosecutors have the power to issue summary penalties, i.e. to impose fines without trial in cases where the maximum penalty provided for the offence does not exceed the imposition of a fine or imprisonment for six months. For the most part, summary penalties are used in cases involving road traffic violations.
The prosecutor may decide not to prosecute even if there is a prima facie case, for instance because of the minor significance of the offence or the youth of the offender. This type of non-prosecution (diversionary non-prosecution) is normally only applicable to offences that, if brought to trial, would be punished by a small fine.
The prosecutor may interrupt the investigations on the initiative of the head of the investigation.
In general, prosecution may be dismissed on the following grounds:
- investigations show, that no crime has been committed (the act does not fulfil the statutory elements of the offence);
- there is not enough evidence for prosecution (no ‘probable cause’);
- the prosecutor lacks the right to prosecute (in complainant offences the victim will not press charges); and
- the maximum time for raising the charge prescribed in the statute of limitations has been exceeded.
The period during which an offence can be prosecuted is limited in time, depending on the seriousness of the offence. The limitation periods are the following: two years, if the statutory penalty does not exceed fines or one year of imprisonment, e.g. petty theft, drunken driving, using of narcotics; five years, if the statutory penalty does not exceed two years of imprisonment, e.g. theft, assault, narcotics offence and other medium range offences; ten years, if the statutory penalty does not exceed eight years of imprisonment, e.g. aggravated theft, rape and robbery; twenty years, if the statutory penalty exceeds eight years of imprisonment, e.g. manslaughter, aggravated narcotics offence and aggravated assault. There is no limitation period, if the statutory penalty is life imprisonment, e.g. murder, some war crimes and some crimes against humanity.
Accountability of the prosecution service
The prosecutor service is basically independent. The Prosecutor-General is the head of all prosecutors and he has no formal superiors. On the other hand, in the organisational structure the prosecution service falls under the Minister of Justice, who has to carry the final political responsibility for the its activities.
In principle, it would be possible that the Minister of Justice be questioned about prosecution policies in Parliament by the opposition. However, in the day-to-day parliamentary work, hearings take place in different sub-committees of the Parliament. In these meetings, the Prosecutor-General or a representative from his office defends or explains the policies adopted (and makes requests for more resources).
Matters of major importance may be settled and discussed between the Ministry of Justice and the Prosecutor-General. Still, the starting point is that Prosecutor-General has very strong independent position. However, before publishing new prosecution guidelines the Minister of Justice must be informed according to the law. In practice this means that, if needed, the contents of the Prosecutor-General's guidelines are discussed with the Ministry of Justice.
The tasks of the prosecution service are defined in the law. The Ministry of Justice has the prosecution service in its budget.
Prosecutors are independent in their work. Section 1.2 of the Public Prosecutors Act states that prosecutors have an independent discretion in cases dealt by them, so they cannot be required to follow instructions.
Mandatory prosecutions and discretionary power
According to the legality principle, prosecution must take place in all cases in which sufficient evidence of guilt of the suspect exists. The rigid requirements of the principle of legality are counterbalanced by the provisions of non-prosecution. The general grounds for non-prosecution are strictly defined in the law. The first two grounds relate to the seriousness (petty nature) of the offence and the young age of the offender (young offenders under the age of eighteen). Thus, the prosecutor can waive the prosecution when no other penalty than a fine is to be expected for the offence, and the offence is deemed to be petty considering the harmfulness of the act or the culpability of the offender. Prosecution is also waived if an offence has been committed by a person under eighteen years of age, when no other penalty than a fine or imprisonment for at most six months is to be expected for the offence, and the offence is deemed to be the result of thoughtlessness or imprudence rather than heedlessness at the prohibitions and commands of law (Sect. 1.7 CJP).
A third ground is non-prosecution based on reasons of equity or criminal policy expediency. This is the case, for example, when trial and punishment are deemed unreasonable or pointless considering the reconciliation between the offender and the complainant, or other action taken by the offender to prevent or remove the effects of his offence, his personal circumstances, other consequences of the offence to him, care taken by social security and health authorities, or other circumstances. In this respect, it should be noted that Finnish law does not recognise the possibility of plea bargaining. This section also covers non-prosecution on the basis of reconciliation and mediation as well as other reparative actions taken by the offender. Victim-offender mediation was specifically included in the law in 1995. Since then, it has quickly gained more and more importance as a ground for non-prosecution.
The fourth grounds for non-prosecution concerns cases where the offender is being charged for several offences and prosecution of this particular offence would have no practical relevance for the sentence.
In addition, there are specific provisions on non-prosecution in connection with certain offences such as drug-offences and tax-offences.
The utilisation of prosecutor discretionary power is harmonised through legal regulations and instructions given by the Prosecutor-General.
When there is no prima facie case or when prosecution is otherwise precluded, e.g. because of the statute of limitations there is ground for non-prosecution due to technicalities.
The Prosecutor-General has given detailed instructions on the content of decisions on non-prosecution. All decisions must be motivated. The general starting point in writing the motivation is: the more serious the case, the more detailed the motivation required.
Settlement out of Court
Annually some 5,000 cases 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 and most 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 the referral of cases and their further processing is concerned. There is no legislation on the organisation of mediation, but plans and proposals are being prepared. The criminal code has also been revised recently, so that it now mentions an agreement or settlement between the offender and the victim as a possible ground for waiving of charges by the prosecutor, the waiving of 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 anyone of the possible parties. Three-quarters of all cases are referred to mediation either by the prosecutor (44%) or by the police (30%); the remainder of cases are initiated by the offender (9%), social authorities (7%), the victim (5%) or other (6%).
In cases where initiative for mediation comes from the prosecutor, the prosecutor sends the case to the mediation office with an announcement that he will decide on the charges (whether to prosecute or not) within a short 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 subject (type of offence), the content of a settlement (how the offender has consented to repair the damages), place and date of the restitution as well as the consequences for a breach of the contract.
In complainant offences mediation will often put an end to the matter even before it gets to the court. In non-complainant offences the prosecutor can drop the charge, if prosecution would seem either unreasonable or pointless due to reconciliation, and non-prosecution does not violate an important public or private interest. The latter condition excludes more serious offences from non-prosecution. In general, if non-prosecuting would endanger the victim’s right to get damages compensated, this option would be out of question.
Of course, the parties may settle the case also without the support of community mediators.
There are no formal restrictions or limits concerning settlement out of court, nor are there restrictions on cases eligible for mediation. Mediation, as such, is no guarantee that the case will be dropped. Therefore, there is no need to restrict the scope of crimes eligible for mediation. Still, there has been a lot of controversy whether cases of domestic violence are suitable to be handled by lay-mediators. The Prosecutor-General has also given instructions to hold a restrictive view on non-prosecution in cases of family violence. The motivation for these guidelines lies in the fear that the victim may settle the case under threat.
