Vanwege het Corona virus is het nog onduidelijk hoe het onderwijs precies verzorgd gaat worden. Zie voor de actuele informatie de betreffende vakpagina’s op Blackboard/Brightspace.

Studiegids

nl en

Prosecution and Diversion

Vak
2019-2020

Entry requirements

Students who want to take this course need to be admitted to the master’s program in Comparative Criminal Justice.

Description

In the second half of the 20th century the numbers of crimes and suspects recorded have increased dramatically. Despite a more recent reduction of crimes in some western European states, there is little doubt that the quantitative expansion of criminal justice systems has had far-reaching impact on the way in which its actors operate. Often described as a key player in the criminal justice system – ‘the gatekeeper to the courtroom’, the ‘engine’ or the ‘dynamo’ of criminal procedure – the public prosecutor is among the institutional actors which underwent the most significant transformations over the last few decades, with its functions and goals being increasingly redesigned. It is now apparent that the developments affecting the aims and the role of prosecution services have been caused by the increasing flood of proceedings to be handled at the preliminary stage. This state of things has led to the introduction of procedural shortcuts and simplifications – designed to prevent criminal cases to reach the court stage – which radically changed the role played by prosecutors, often by means of an increase in their discretionary power. The primary objective of this course is describing the transformation of the functions performed by the prosecution services: indeed, as the pressure of increasing caseload grew, prosecutors have shifted from being simple actors of the criminal proceeding to performing a more ambitious role of conflict-resolution and case-settling. This has often been accompanied by the introduction of full-fledged alternatives to prosecution, used to divert cases away from courts while subjecting suspects to various forms of restriction and deprivation. It appears, however, that the international trends described above take place with a varying degree of intensity within national jurisdictions, mostly depending on the general principles governing prosecution at national level (e.g. principles of expediency or principle of legality; adversarial or inquisitorial legal system, etc.). The course will therefore provide an overview of the different models of prosecution emerging from a comparative analysis, in order to outline the way in which prosecutions services manage to deal with a growing demand for ‘criminal justice intervention’. Attention will be paid to the procedural simplifications introduced to increase prosecutorial discretion and establish new forms of diversion at the pre-trial stage – thereby accentuating the decision-making powers of prosecutors. Emphasis will be placed on the dangers related to an unrestricted expansion of these diversionary schemes, raising awareness on the risks that such transformation poses to procedural and fundamental rights. Then, encouraging evidence on the effectiveness of pre-trial diversion treatments will be critically discussed. Finally, the course will address the problematic relationship between prosecutors and the police as well as the role played by victims in the prosecutorial decision-making.

Course objectives

Upon completing this course, students:

  • will be aware of the historical origins, developments and current status of prosecutorial organizations in a comparative perspective;

  • will discover how – from an organizational and sociological standpoint – prosecution services manage to deal with a growing number of cases;

  • will be able to reflect critically upon the actual distribution of powers within the ‘penal field’ at the pre-trial stage, by analyzing the interaction between prosecutors and police;

  • will combine their knowledge on the evidence-based effectiveness of pre-trial diversion programs with a more critical insight on the risks connected to an uncontrolled expansion of prosecutor's adjudicating powers.

Mode of instruction

Lectures

  • The course consists of seven interactive two-hour lectures, during which specific aspects of the literature will be discussed.

  • Lectures are divided in three main blocks (each of two lectures). At the end of the first lecture of each block, students are assigned topic to write a short paper on one of the topics covered by the course.

Seminars

  • The course comprises two mandatory two-hour seminars, in addition to the seven lectures mentioned above.

  • During these seminars students will be engaged in group assignments addressing practical questions based on the two previous lectures.

  • Seminars will also be devoted to collectively discussing the **topics covered by the week’s paper **upon submission of the latter.

  • All students are required to attend and actively participate during lectures and seminars.

Outline of the Lectures

  • Lecture 1: General principles governing prosecution in a comparative perspective

  • Lecture 2: The discretionary powers of prosecutors: institutional features and decision-making (law and practice).

  • Lecture 3: The relationship between prosecutors and the police: a precarious allocation of powers.

  • Seminar 1: Discussion of paper's topics and collective assignment on a practical exercise

  • Lecture 4: Prosecutorial decision-making and the role victims: procedural rights and social legitimacy

  • Seminar 2: Discussion of paper’s topics and collective assignment on a practical exercise

  • Lecture 5: Diverting cases away from prosecution: from unconditional dismissal to pre-trial diversion programs

  • Lecture 6: Testing the results of pilot-experiences with juvenile and drug-related offenders.

  • Seminar 3: Discussion of paper’s topics and collective assignment on a practical exercise

  • Lecture 7: Summary of the course and preparation for the written exam

Assessment method

  • Students will have to pass a final written examination.

  • Every week, students are expected to write a short (2-3 pages) individual paper. These weekly papers form part of the portfolio.

  • Students are expected to prepare for the lectures by reading the literature assigned. The mandatory readings must be consistently relied on to write the individual papers.

  • Attendance of the seminars is compulsory, and proper preparation and active participation is expected.

Course grades are determined by:

  • Portfolio (50%)

  • Final written examination (50%)

  • Each component of the final grade should be at least 5,5 in order to complete the course successfully. If this is not the case, the lowest partial grade will be registered as final grade.

  • There will be a retake for the written examination mentioned above.

  • Depending on the number of participants, the course coordinator can decide that this retake will be an oral examination. In that case, students will be notified of this in time.

  • The partial exams that have been finished with a passing grade, will be valid up to and including the academic year following the year in which the grade has been achieved. To this there is one exception: when the learning objectives, content, design or examination of a course has been changed, the course coordinator can decide that the validity of the partial exam concerned has expired due to didactic reasons. This will be stated in the course description of the academic year in which the change(s) will be implemented.

Regulation retake passed exams
In this course it is possible to retake an exam that has been passed (cf. art. 4.1.8.1 and further of the Course and Examination Regulations), on the condition that this course is included in the compulsory components of the degree programme. Students who have passed the exam may retake the final written assessment (test) of the course. Please contact the Student Administration Office (OIC) for more information.

Blackboard

The use of Blackboard is required.

Reading list

Preparatory readings

  • Jehle, J. (2008). The Public Prosecutor as Key-Player: Prosecutorial Case-Ending Decisions. European Journal on Criminal Policy and Research, (2-3), 161-179.

  • Tak, P.J.P. (2008). Methods of Diversion used by the Prosecution Services in the Netherlands and Other Western Countries, UNAFEI Annual report, 74 Resource Material Series (http://www.unafei.or.jp/english/pages/RMS/No74.htm), 53-64

  • Taleb, A. & Ahlstrand, T. (2011). The Public Prosecutor, its role, duties and powers in the pre-trial stage of the criminal justice process: a comparative study of the French and the Swedish legal systems. International Review of Penal Law, 82(2-3), 523-540.

  • Choe, D.H. (2014). Discretion at the pre-trial stage: A comparative study. European Journal of Criminal Policy Research, 20, 101-119.

  • Kijelby G. J. (2015). Some Aspects of and Perspectives on the Public Prosecutor’s Objectivity according to ECtHR Case-Law Bergen Journal of Criminal Law and Criminal Justice, 3(1), 61-83.

Registration

Students have to register for courses and exams through uSis

Employability and (academic) career

Participants train their skills in analyzing data, reviewing literature, presenting their research outcomes, debating, and developing criminal justice policies.

Contact

Institute/department

  • Institute for Criminal Law and Criminology

  • Department: Criminology

  • Opening hours: 09.00 to 12.30

  • Telephone secretariat: 071 – 527 74 62

  • Room number: B3.11

  • E-mail: criminologie@law.leidenuniv.nl