Prosecutorial discretion has been described as the filter function of the prosecution service. The notion of “filter function” is used to signify the extent of the prosecutions discretionary powers to divert a case out of the formal flow of criminal justice, into various alternatives as optional writ, waiver of prosecution, simplified procedure for judgment, friendly settlements and mediation. These methods aim at diverting the suspect out of criminal justice system at the earliest possible stage, and would typically have the main focus on minor offences committed by young first-time-offenders, acts caused by poverty or by immaturity or in connection with other extenuating circumstances. Most countries in Europe do have prosecutorial discretion that can be divided in two theoretical legal starting points depending on the nations basis for prosecutorial policies; the legality principle and the opportunity principle.

Currently in Moldova the administration of the criminal justice has scarce resources and there is a significant increase of the caseload for courts. The problem as far as we know, is that there are too many minor criminal cases that occupy too much time for the prosecution authorities. This includes also time spent in court. The consequence is a manifest disproportion between the offence on one side and the means enforced according to existing law on the other side. There is a need for more simple but efficient ways to solve these minor cases. This fact leads to the importance of having a prosecution in position to regulate the influx of cases to be dealt with by the courts, i.e. possessing the discretional power to decide which cases have to be brought before court and which cases can be dealt with by methods other than court procedures. The advantage of the opportunity principle as an efficient foundation is that it offers the prosecution the flexibility in the criminal proceedings, thus avoiding continuous circumstantial lawgiving processes as long as the prosecution can act within adjusted legal frames. This solution would give the possibility to regulate the influx and concentrate on significant cases.

As regards the Norwegian system, the function of the prosecution authority and the courts of law are strictly separated, so that the court does not act except on the application of the person entitled to prosecute, and ceases to act when the application is withdrawn. Under this system the judge shall take no part in obtaining the information and evidence necessary in the case; this is left to the parties – the prosecuting authority and the person indicted (accused).

It should also be mentioned that this is the way to follow in order to approach high European standards for the prosecution. This calls for a particular highly developed standards elaborated for the prosecution authority securing efficiency in the internal control and supervision system. The prosecutors must be well qualified and have high integrity, competence and public trustworthiness.

Under this project, the main directions of cooperation were:

  • Moldova, drawing parallels to the Norwegian system of discretional rights and the way it works within the system of legal safeguards for individual citizens.
  • standardised forms and schemes that are used by the Norwegian prosecutors for taking decisions in criminal proceedings, due to the reason that such materials may serve as an inspiration for Moldovan solutions;
  • input into the process of elaborating of the external role and external authorisation and organisation of the prosecution authority in Moldova, drawing parallels to the Norwegian system, for instance, when it comes to inspection responsibilities and supervisory function with respect to the way in which the police handle criminal cases;
  • input into the process of elaborating of an efficient internal structure with the aim of enhancing efficiency, transparency and the best fulfilment of internal control and instructions, for instance, when it comes to establishing of regulations and instructions for internal matters and priority areas in the fight against criminal elements in the society. The regulative framework of prosecutors activities should consist of regulations (that must have authority in law in its field and be approved by the Government) and directives (that still may have an approval system by a counsel) and circular letters (given directly by the General Prosecutor). The advantage with these solutions and not formal law is to give the General Prosecutor s Office a flexible and resolute tool for achieving internal efficiency, avoiding a lengthy circumstantial lawgiving process. It can be mentioned that in Norway the system of regulations, directives and circular letters from the General Prosecutor is highly developed and efficient, especially when it comes to new situations that call for resolute actions from the General Prosecutor;
  • participation in conferences concerning the prosecution authority in Moldova, to offer input regarding topics discussed and to comment on the suggested provisions and draft laws.