The Concept of Prosecutorial Discretion and its applicability in the context of the

Black’s Law Dictionary defines discretion as ‘[a] public official’s power or right to act in certain circumstances according to personal judgment and conscience, often in an official or representative capacity.’63 Prosecutorial discretion is further defined as ‘[a] prosecutor’s power to choose from the options available in a criminal case, such as filing charges, prosecuting, not prosecuting, plea-

62 _{OTP, Strategic Plan June 2012-2015 (International Criminal Court, 2013) 14.}

63 _{Bryan A. Garner, Black's Law Dictionary (available at Westlaw BLACKS, 9th edn, Thomson}

bargaining, and recommending a sentence to the court.’64 To what extent can this definition be applied to the ICC Prosecutor’s discretion? How free is he in deciding to act in accordance with his personal judgment and conscience or within his own perception of what is fair and equitable? How loose or constricted is the Prosecutor’s power under the Statute? Is he subject to strict rules?

The degree of prosecutorial freedom varies substantially from one system to another; of course, prosecutorial arbitrariness is not permitted under any system of criminal justice.65 _{However, already within the ‘continental’ or ‘civil law’}

system it is possible to find two main approaches. On the one hand, in the Spanish legal system (Obligatoriedad de la Acción Penal) as well as the Italian one (Obbligatorietà dell’azione penale),66 the prosecutor is under a duty to investigate and prosecute whenever there are sufficient reasons to suspect that a criminal offence has been committed. Similarly, in Germany (Legalitätsprinzip),67 _{the prosecutor is under the same duty to investigate and}

prosecute, although there are some exceptions in relation to certain offences that are investigated and prosecuted only when there is a complaint from the victim and, more importantly, the prosecutor has the right to drop cases under certain circumstances. On the other hand, there are systems like the French (Opportunité des Poursuites)68 and Dutch (Opportuniteitsbeginsel),69 in which the prosecutor will be guided in his decisions by considerations related to the opportunity or desirability of prosecutions. The degree of judicial oversight and authority will also depend on the particular system, although the civil law traditions generally include – to different degrees – judicial oversight and control over the prosecutorial process.

At the other end of the spectrum, in the US, save for unconstitutional motivations, the prosecutor has nearly unfettered discretion in deciding whether

64 _Ibid.

65 _{Lenore F. Horton, ‘Prosecutorial discretion before international criminal courts and}

perceptions of justice: How expanded prosecutorial independence can increase the accountability of international actors’ (2010-2011) 7 Eyes on the ICC 5, 7-10.

66 _{Héctor Olásolo, Corte Penal Internacional ¿Dónde investigar? Especial referencia a la Fiscalía}

en el Proceso de Activación (Tirant Lo Blanch 2003) 298-300.

67 _{See K. Tiedemann and J. Vogel, ‘National Report of Germany’ in Mireille Delmas-Marty and}

J.A.E. Vervaele (eds), The Implementation of the Corpus Juris in the Member States, vol II (Intersentia 2000) 363.

68 _{Jacques Leroy, Procédure Pénale (2 edn, L.G.D.J. Lextenso éditions 2011) 247-250.} 69 _{Geert J.M. Corstens, Het Nederlands Strafprocesrecht (4th edn, Kluwer 2002) 51-52.}

to investigate and prosecute.70 Considerations such as the likelihood of conviction and the public interest in the prosecution will determine the prosecutor’s decision whether to proceed against certain individuals or crimes. In England and Wales, the police retain almost exclusive control over the investigation, while the Crown Prosecution Service (CPS) is the government department responsible for prosecuting criminal cases. The police will generally have control over the decision whether a case should be prosecuted and the charges to be brought against an accused, although the CPS will advise the police on cases for possible prosecution and determine the charges in more serious or complex cases.71

Héctor Olásolo explains that the discretion granted to prosecutors in systems like the American one is explained by reference to their democratic legitimacy and political responsibility.72 In these systems, he argues, the organs of investigation and prosecution form part of the executive power and their discretion is thus a reflection of their role as instruments at the service of the criminal policy of the executive.73 Conversely, in systems following mandatory prosecutions, the mere communication of the notitia criminis activates the initiation of the criminal investigation, and the existence of a ‘reasonable basis’ will automatically trigger the commencement of a criminal prosecution.74 Olásolo argues that in the systems featuring mandatory prosecution, the functions of investigation and prosecution would be considered ‘quasi- jurisdictional’ as their main goal is the protection of the general interests defined by law.75 _{Consequently, in Olásolo’s view, the choice between}

discretionary or mandatory investigation and prosecution will depend on whether these functions are conceived as tools to implement governmental anti- crime policies or are aimed at preserving the general interests defined by law.76

70 _{See, inter alia, (n 65) Horton 8; (n 66) Olásolo, Corte Penal Internacional ¿Dónde investigar?}

Especial referencia a la Fiscalía en el Proceso de Activación 296, footnote 61.

71 _{(n 65) Horton 8; The Code for Crown Prosecutors (January 2013), England.}

72 _{(n 66) Olásolo, Corte Penal Internacional ¿Dónde investigar? Especial referencia a la Fiscalía en}

el Proceso de Activación 297.

73 _{Ibid 298.}

74 _{(n 24) Olásolo, 'The prosecutor of the ICC before the initiation of investigations: A quasi-}

judicial or political body?' 114.

75 _{Ibid 115.} 76 _{Ibid 116.}

Olásolo’s theory, although an analytical frame worth holding on to, leaves some questions unanswered. In particular, it is not exactly clear whether he implies that the options are mutually exclusive in the sense that, in a system based on discretion, the functions of investigation and prosecution are conceived (only) as tools to implement governmental anti-crime policies, and that only a system of mandatory investigation and prosecution is aimed at preserving the general interests defined by law. It is difficult to see how such an interpretation can be squared with the English system for example, where discretion is guided by public interests and not only by ‘governmental anti-crime policies’. Indeed, in accordance with the 2013 Code for Crown Prosecutors, the CPS discretion to decide not to investigate or not to prosecute or to accept out-of-court disposals or guilty pleas is based upon whether the ‘public interest’ would be properly served by those measures.77

Olásolo also appears to argue that the choice between mandatory and discretionary investigation and prosecution will be guided by the supreme values of the particular legal system. He argues that the systems based on legal stability and equality before the law would adopt mandatory prosecution or the ‘principle of legality’ (as it is known in the German tradition) and systems based on representative application of the law, democratic legitimacy, and political accountability would be more inclined to adopt the principle of political discretion.78 This distinction, although arguably applicable to some specific examples, does not seem to be easily extrapolated to other systems national or international. In effect, for example, although strictly speaking based on discretion, the French and Dutch ‘principle of opportunity’ is conceived within legal systems in which equality before the law and legal stability are pillar values of the system as much as in Spain and Italy.79 Similarly, although the Procurator Fiscal in Scotland enjoys considerable discretion, he is only

77 _{The Code for Crown Prosecutors (January 2013), England paras 4.1-4.2, 4.7-4.12, 7.2, 9.3.} 78 _{(n 24) Olásolo, 'The prosecutor of the ICC before the initiation of investigations: A quasi-}

judicial or political body?' 116.

answerable to the Lord Advocate and generally declines to explain his decisions to anyone else.80

The same can be said about the Statute. It could not be reasonably argued that the drafters have chosen that the Prosecutor should implement governmental anti-crime policies over preserving the general interests defined by law or that they have opted for political accountability or democratic legitimacy over equality before the law or legal stability, or the other way around. Articles 22, 23 and 24 recognise the general principles of law providing for legal stability: nullum crimen sine lege, nulla poena sine lege and non-retroactivity ratione personae. Article 27(1) provides for equality before the law, stating that the Statute applies equally to all persons. However, at the same time, in accordance with Articles 42(4) and 46(2) the Prosecutor is elected and may be removed from office by an absolute majority of the Assembly of States Parties (ASP). The ASP is the representative-political organ of the Court, in which each State that has ratified the Statute is represented pursuant to Article 112. The ICC’s Prosecutor is therefore politically accountable to the ‘democratic’ political organ of the Court. At the same time, however, he is not elected in order to implement the ASP’s policies, but to preserve the ‘general interest’ defined by the objects and purposes of the Statute. Further, as referred to in the previous section, the Prosecutor’s discretion is not unlimited but subject to considerable judicial control and oversight by the PTC.

Accordingly, the extent of the Prosecutor’s discretion cannot be determined or rationalised through assimilation of the system created by the Statute to any of the traditional models of criminal justice. As stressed by Alexander Greenawalt, the policy dilemmas faced by the Prosecutor are heavily influenced by institutional goals and limitations that fundamentally distinguish international prosecution from its domestic counterparts.81 It should be acknowledged that the Court’s system is unique and does not emerge directly from principles or traditions of criminal justice commonly shared by all of its members. It is not the dreamed of ‘world penal court’ established on the basis of a ‘unified world

80 _{Alastair N Brown, Criminal Evidence and Procedure. An Introduction (3rd edn, Avizandum}

Publishing 2010) 21.

community’,82 but rather represents the result of political compromise between diverse and, at times, contradictory perspectives on the intrinsic values and purposes of criminal justice and punishment. As such, and as stressed above, the drafters opted for ‘creative ambiguity’ in circumstances where agreement would have proved difficult if not impossible to obtain.83 The extent and limits of the Prosecutor’s discretion should be therefore analysed in light of his concrete powers under the Statute and degree of judicial oversight at the different stages of the proceedings.

1.2.2 The Prosecutor’s Discretionary Powers in Accordance with the Statute