Skip to main content Accessibility help
×
Hostname: page-component-586b7cd67f-t7fkt Total loading time: 0 Render date: 2024-12-07T08:47:18.051Z Has data issue: false hasContentIssue false

Overprosecution and Negotiated Justice in Europe

from PART II - THEMES 2ÈME PARTIE. THÈMES

Published online by Cambridge University Press:  26 June 2019

Get access

Summary

INTRODUCTION

As judicial authorities face increasingly complex criminal legislation and evermounting workloads, to such an extent that the judicial apparatus risks losing its capacity to properly fulfil its function and maintain credibility, legislators and prosecutors are looking to various possibilities to filter out less exigent cases, to accelerate criminal proceedings or to launch new tools to make good on and prevent future wrongdoing without engaging the power of the criminal law at all.

One way of dealing with the overload of case files consists in resorting to forms of “negotiated” – as opposed to traditional, imposed – justice, such as outof- court settlements, penal orders, guilty pleas and deferred prosecution agreements. Such alternative routes first and foremost enable prosecutors and judges to handle certain cases more quickly and without having to comply with all of the burdensome trappings of a full criminal trial, in theory assuaging fears of loading criminal justice systems beyond breaking point. Yet the minimization, sidelining (or complete excision) of the full trial stage which is typical of negotiated justice mechanisms raises serious questions around the quality of justice being – swiftly – delivered, the openness of criminal justice in general, and the communicative function of sanctioning systems.

In this chapter, we explore these tensions through the prism of the evolving roles of the prosecutor and the judge in the context of negotiated justice in Europe.

We begin by reflecting, in Part II, on the main causes of overprosecution, before discussing its ramifications for the very viability of European criminal justice systems – such as the highly problematic overuse of pre-trial detention. The term “overprosecution” will be used interchangeably with “overuse of prosecution” to mean the (quantitatively) excessive resort to prosecution rather than any (qualitative) misuse or abuse of prosecutorial power.

Part 2 closes by situating the turn to negotiated justice mechanisms amongst a broader set of developments aiming principally to streamline criminal justice via strengthened prosecutorial power and a gradual shift toward more horizontal, transactional forms of dispute resolution.

Type
Chapter
Information
Overuse in the Criminal Justice System
On Criminalization, Prosecution and Imprisonment
, pp. 101 - 128
Publisher: Intersentia
Print publication year: 2019

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×