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.