In terms of initiating proceedings, the criminal justice systems of EU Member States differ from one another with regard to the principles of opportunity (i.e. the discretionary power of the Prosecutor to sue, most often in cases of serious crimes) and legality (i.e. the fact that the Prosecutor can systematically be obliged to sue any offence for which he/she is made aware of). 1
The principle of opportunity is applied in Belgium, France, Denmark, Ireland, United Kingdom, Luxembourg and the Netherlands. Germany, Austria, Spain, Finland, Sweden, Greece, Italy and Portugal apply the principle of legality.
It is now a common phenomenon for victims to participate in criminal proceedings in order to obtain redress for personal injuries resulting from an offence. Whether victims and organisations are able to initiate criminal proceedings without intermediation has a direct effect on their access to justice. Restrictions on the ability of victims to directly cause an investigation to be opened, combined with the principle of opportunity (prosecutorial discretion) can seriously hamper victims’ access to courts. In some States the rules for initiating prosecution on the basis of extraterritorial jurisdiction differ from those applicable to common or “territorial” crimes. 2
Spain is exemplary in this field. Criminal prosecution is guided by a “juez central de instruccion” that can be seized by the prosecutor, the victim 3 and also by any private citizen or association bringing “class action” (a suit brought before criminal court by a private citizen, in the interest of either an individual or society as a whole). Spain is the only EU Member State to introduce class action in criminal matters. Prosecutorial discretion is also non-existent in Spanish prosecutions. 4
According to the legal tradition of the country concerned, victims generally have an opportunity to bring legal action as a civil party, 5 or else the prosecutor alone can bring victims on as representatives of the executive branch. 6
Germany has a hybrid system. Although victims are unable to bring legal action, they may eventually join the proceedings as auxiliaries to the prosecutor. 7
The ability to bring legal actions as a civil party, which allows a direct appeal to a court, is somewhat controversial. Although it often seems necessary to combat the public prosecutor’s inertia, 8 it has also been warned that the lodging of symbolic, ideological or political complaints risks turning the judiciary away from its original purpose. 9
The ability to bring legal actions as a civil party is undoubtedly useful because it bypasses the prosecutor’s frequent exercise of discretion (the principle of mandatory prosecution is rare) over whether an extraterritorial crime will be prosecuted. A prosecutor’s decision may be influenced by both political and financial considerations. Crimes committed abroad require substantial resources (trial judges, translators, a budget for letters rogatory, etc.). In addition, the prosecutor usually decides the budget and the resources which will be allocated to a potential trial. With regard to the will of the executive to prosecute multinational based in the country, it is possible that the executive would abstain, given that such prosecutions would undermine the country’s economic interests.
Italy applies the mandatory prosecution principle which, according to the Constitution, implies that the public prosecutor has the obligation to exercise criminal action. This principle, although tempered by the possibility for the Prosecutor to dismiss cases provided that there is an inconsistency between facts, a procedural obstacle or the absence of legal characterization, allows associations – acting on behalf of victims- to alert the Prosecutor on alleged corporate-related human rights violations. The recent eternit trial is a good example.
Germany, Greece and the Netherlands also expressly allow for prosecutions to be dropped for political reasons. 10 These elements are significant. Given victims’ fear of being exposed through court proceedings, recognising a right for civil associations to represent victims’ interests, or “class actions” such as that applicable in France for certain crimes, 11 would undoubtedly be a useful measure for countries to adopt. 12
In 2003, Belgium limited the scope of civil actions available to plaintiffs for violations of international humanitarian law. 13 Civil action is now possible only when the company and/or its leader are of Belgian nationality or reside on Belgian soil (active personality). 14 In other situations, only the Federal Prosecutor may initiate investigations.
Similarly, France adopted a legislation which incorporates crimes under the Statute of the International Criminal Court into French national law. Such legislation grants a monopoly to the prosecutor therefore denying victims the ability to bring civil action and to trigger the opening of a criminal investigation. 15
The national standards which stipulate that only the prosecutor may decide to prosecute (according to the principle of prosecutorial discretion) also tend to grant recourse to victims whose appeals are denied. 16 Through these provisions, States comply with international guidelines which hold that the rights of victims, particularly those who are victims of serious human rights breaches, must receive special attention. 17