Principle of opportunity

The principle of opportunity is a principle in Dutch law (opportuniteitsbeginsel), German law (Opportunitätsprinzip), Swedish law, Slovenian law and French law. It is that a crime will be punished only if its prosecution is considered opportune. Therefore, public prosecutors have the discretion to cancel the prosecution of a crime. Cancelling the prosecution of a crime is called a sepot or seponering in Dutch and is mentioned in the First Book, First Title, Fourth Section of the Dutch Criminal Procedure Code (Articles 12, 12a, 12b, 12c, 12d, 12e, 12f, 12g, 12h, 12i, 12j, 12k, 12l, 12m, 12n, 12o, 12p, 13 and 13a).[1]

In countries that do not recognise the principle of opportunity, the cancellation of the prosecution of a known felony can itself be considered a felony.[2]

There are three sorts of cancellation of prosecution:

  • policy sepot: petty crimes are not prosecuted to free up capacity in the legal system and to prosecute serious crimes.
  • technical sepot: there is not enough evidence to obtain a conviction from a court or such a conviction is highly unlikely.
  • conditional sepot: the crime suspect is spared from being prosecuted if the suspect commits no other crimes. In Belgium, that is called a "praetorian probation".

A crime whose prosecution is cancelled can still be resumed later (the ne bis in idem principle does not apply to sepots),[3] unless the Public Department has made a formal communication to the crime suspect that the suspect is no longer prosecuted (then, prosecution cannot be resumed according to the principle of administrative law trustworthiness).

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

References
  1. Art. 12, Sv.
  2. Some similar provisions are in Belgian law and apparently Estonian law. Ploom, Tristan (2000). "Principle of opportunity". Juridica. Estonia (VI): 369–376. ISSN 1406-1074. Retrieved 6 December 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
  3. The sepot is not a verdict of a judge, in the meaning of the Art. 350, Sv.

See also



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