In petty or less serious cases, the public prosecutor may, under certain circumstances which are precisely set out in the law, refrain from prosecuting the offence and resort to what is referred to as an extrajudicial settlement. This may involve ordering the offender to
- pay a fine
- perform community service
- fulfil certain obligations (e.g. compensation of loss or damage)
- accept a restorative justice procedure.
The basic prerequisite for an extrajudicial settlement is that the offender demonstrates a certain level of remorse and agrees to this kind of settlement.
Moreover, the following prerequisites are mandatory for extrajudicial settlements:
It does not seem necessary to punish the offender in order to make the offender refrain from criminal offences in the future nor to prevent other people from following the unpunished offender’s example and committing criminal offences. The offence must not fall within the jurisdiction of mixed or jury courts; the cases in question may only be petty or less serious cases. The offender’s culpability must not be serious. The offence did not lead to the death of a human being.
Will I as a victim be asked to agree to an extrajudicial settlement?
As long as the offender has not any provided any compensation for loss or damage to you, the public prosecutor is under the obligation to give you an opportunity to express your opinion before dropping the prosecution.
In the event of a restorative justice procedure, you will be involved if you are willing to do so. Restorative justice procedures imply that the offender is willing to assume responsibility for the offence and to address its causes. The procedure involves victim-offender mediation.
Your consent is usually required for such an approach. However, if such consent is withheld for reasons which do not merit consideration in criminal proceedings (e.g. revenge), a restorative justice procedure may be carried out without your consent. Your interests will have to be considered in any case, however.
If, following an extrajudicial settlement, the public prosecutor drops the prosecution, you cannot appeal this decision.
If the public prosecutor considers the requirements for an extrajudicial settlement to be met, a proposal will first of all be submitted to the offender specifying the conditions for the discontinuation of prosecution. The public prosecutor will not definitively desist from prosecution until the offender accepts this proposal and meets the imposed obligations.
For example, if a probation period of two years was imposed on the offender to fulfil certain obligations, such as compensating the victim for loss or damage, the public prosecutor will initially desist from prosecution only on a temporary basis.
If the offender then fails to provide such compensation, or if charges are brought against the offender for a different offence during the probation period, the public prosecutor has to revoke his/her preliminary decision not to prosecute and resume the criminal proceedings.
What are the consequences of an extrajudicial settlement?
When proceedings are ended by an extrajudicial settlement, the offender will not have a criminal record; the accused is not convicted and thus retains a clean record.
May an extrajudicial settlement be arrangedeven after charges have been brought?
Even if the public prosecutor initially decides to bring charges, the court may still, during the trial, opt for an extrajudicial settlement if it deems the relevant requirements as having been met.
Your rights as a victim:
- You have the right to redress by the offender.
- You can have yourself accompanied to a restorative justice procedure by a trusted person or your psychosocial victim advocate.
- You have the right to be involved in and be asked for your consent to a restorative justice procedure.
- You have the right to be informed on whether the accused is willing to redress the damage or whether he/she will take on an obligation that impacts your interests.