Confining the Principle of Opportunity in the Continental Criminal Process

• In Event: Prosecutorial Decision-making and Alternatives to trial 1. Opportunity and Negotiated Justice Across Jurisdictions

Abstract

Current trends in comparative law reveal a tendency to adopt specific institutions from Anglo-American systems into continental criminal procedures, which are fundamentally based on the principles of legality and truth-finding. The apparent success in managing the resources necessary for the realization of criminal justice in states that have adopted the Anglo-American system has justified the efforts of other states to move away from the constraints imposed by the principles of legality and truth-finding. These states seek to implement institutions that, on one hand, allow for the negotiation of the limits of criminal liability, and on the other hand, forego the prosecution in situations where, although the conditions for imposing criminal liability are met, the facts are of such minor severity that the costs of conducting a criminal trial would be disproportionate.
These procedures are based on the principle of opportunity, which establishes the limits of the prosecutor's discretion in formulating the charge, determining its content, and negotiating the resolution to be proposed to the judge in the case.
Although the efficiency of applying the principle of opportunity has led to its adoption in the legislations of European states, its implementation has varied according to the specifics of each system.
In this paper, we will provide a brief overview of the reform of the European criminal process and how the principle of opportunity was adopted, followed by an analysis of the limited implementation of the principle of opportunity and elements of negotiated justice in the new Romanian criminal procedural legislation.

Author

• Cristian Bălan, Faculty of Law, University of Bucharest