The functionality of the criminal justice system

Between a right and an obligation to prosecute (PhD project)

The legal development and legal frameworks of the principle of discretionary prosecution in Norwegian criminal procedure

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By Senior Adviser Gert Johan Kjelby

Police and prosecutors exercise essential functions in criminal proceeding. As part of criminal law enforcement, the prosecutor determines whether criminal investigation and prosecution should be initiated, limited or terminated. It also determines whether, and if so, in what way, criminal liability shall be applicable. There is no principle of mandatory investigation or prosecution in all criminal cases in Norwegian criminal procedure law or practice, even if there is sufficient evidence of a crime. The aforementioned prosecutorial considerations, including the power to waive or to discontinue proceedings, depends to a great extent on a broad discretionary judgment with several relevant discretionary reasons.

The principle of discretionary prosecution is an important principle and a prerequisite for the exercise of the prosecutorial power in Norwegian criminal procedure. The prosecuting authorities' discretionary powers are fundamentally rooted in its role and function in the criminal system. As part of the law enforcement authorities prosecutors shall ensure the application of the law, react to criminal offences and aim to realize the criminal laws different purposes. At the same time it shall safeguard those affected by crime, those subjected to investigation and prosecution and the society's interests in that crimes are uncovered and criminal cases solved and sanctioned, effectively and without unnecessary costs.

In the early days of Norwegian criminal procedure, the public prosecutors legal rights and obligations derived essentially from their role and functions, with few positive statutory regulations. The legal development consists in the development of principles for the exercise of the prosecution function (e.g. the principle of discretionary prosecution). This development is somewhat parallel to the (slightly later) development of the police authorities’ so-called "general power”, which was in origin based on the role and functions in the legal framework of the police organization, and later to certain principles of police power and practices and finally a positive statutory regulation in 1995. The main statutory regulation of the public prosecuting authorities’ rights and obligations has developed slowly and expanded from the previous century legislation on criminal law and procedure, until recent days. With the new Criminal law act 2005 and a new section 62a in the Law of Criminal procedure in force, the legal basis of prosecutorial discretion changes and enhances significantly. Section 62a second paragraph gives prosecutors - primarily the police prosecutors - ability to not institute or discontinue investigation or prosecution, for any crime within a maximum sentencing range of “2 years or less”, "unless the public interest requires prosecution." Around 80 % of all reported crimes are within this sentencing range, which gives the prosecutors a fairly comprehensive power to exercise discretion, based on what is considered required in the “public interest”.

The dissertation deals with both the judicial development and the current legal framework for prosecuting authorities' ability not to institute or to discontinue investigation or prosecution. Particular it aim at clarifying and structuring the contents and essential elements of the legal phrases; "public interest" and "reasonable ground” in Law of Criminal procedure section 62a and section 224, relating these provisions to other legal grounds, highlighting both relevant and crucial elements and the legal limitations that exist, especially the fundamental duties of investigation in The European convention on Human rights.