Decision Not to Prosecute

A decision not to prosecute is the public prosecutor’s decision at the end of an investigation not to bring a public prosecution (Code of Criminal Procedure Art. 172).

Grounds

• No evidence was obtained creating sufficient suspicion to bring a public prosecution,
• Prosecution is not possible: for example, the act is not an offence, the limitation period has expired, or for an offence subject to complaint, no timely complaint was made or it was withdrawn.

The decision is notified to a suspect whose statement was taken and to the victim, stating the right, period and forum for challenge.

Challenge

The victim may challenge the decision before the criminal judgeship of peace within fifteen days of service (Art. 173). The petition states:

• The facts requiring a public prosecution,
• The evidence proving those facts.

If the judgeship accepts the challenge, it orders a public prosecution and the prosecutor issues an indictment. If it rejects it, the decision becomes final.

Reopening

After a final decision not to prosecute, a public prosecution for the same act requires new evidence and a decision of the criminal judgeship of peace.

Deferral of Prosecution

For certain offences, the prosecutor may, under certain conditions, defer prosecution even where there is sufficient suspicion. If no intentional offence is committed during the deferral period, a decision not to prosecute is given. Compensation of the loss is among the conditions.

A company, as victim, should play an active role at this stage; if a case is brought, it may follow it as an intervening party.