Prosecutorial discretion

The principle of opportunity is a Dutch law principle which says that a crime will be punished only if its prosecution is considered opportune. This means that public prosecutors have the arbitrary decision power to cancel the prosecution of a crime. Cancelling the prosecution of a crime is called a sepot or seponering (in Dutch). Cancelling the prosecution of a crime is mentioned in the First Book, First Title, Fourth Section of the Dutch Criminal Procedure Code (Art. 12, 12a, 12b, 12c, 12d, 12e, 12f, 12g, 12h, 12i, 12j, 12k, 12l, 12m, 12n, 12o, 12p, 13 and 13a).^[1]

In countries wherein the principle of opportunity does not apply, cancelling the prosecution of a known felony is itself a felony (this is called the principle of legality).^[2] This is not the case in the Netherlands.^[2]

There are three sorts of cancellation of prosecution:

policy sepot: petty crimes are not punished, in order to be able to prosecute serious crimes;
technical sepot: there is not enough evidence to obtain a conviction from a court or such conviction is highly unlikely;
conditional sepot: the crime suspect is spared from being prosecuted provided that he/she no longer commits such crimes. In Belgium this is called Praetorian probation.

If the prosecution of a crime is cancelled this does not mean that it cannot be resumed at a later time (the ne bis in idem principle does not apply to sepots),^[3] except if the Public Department has made a formal communication to the crime suspect that he/she is no longer prosecuted (then prosecution cannot be resumed according to administrative law trustworthiness principle).

According to Art. 12 of the Dutch Criminal Procedure Code,^[1] a person with a direct concern in the prosecution of a crime may fill at a court of law a complaint against the cancellation of the prosecution. If the council chamber of the court decides that the crime should be prosecuted, it will have to be prosecuted.

Footnotes

^ ^a ^b Art. 12, Sv.
^ ^a ^b Some similar provisions are in Belgian law. This also seems to be the case in Estonia, cf. Ploom, Tristan (2000). "Principle of opportunity". Juridica (VI). Estonia: 369–376. ISSN 1406-1074. Retrieved 12/6/2009. One possibility for making the criminal procedure more speedy and effective in Estonia is the application of the principle of opportunity instead of the principle of legality which governs at present. ... The author also introduces the provisions concerning the principle of opportunity as proposed in the draft Estonian Criminal Procedure Act. Under the draft Act, the principle should be applied as an exception rather than a rule {{cite journal}}: Check date values in: |accessdate= (help); More than one of |author= and |last= specified (help)
^ The sepot is not a verdict of a judge, in the meaning of the Art. 350, Sv.

Footnotes

See also