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4.2
DISCRETION OF
THE PROSECUTORS
To deal with the ‘threat’ of SOL, public prosecu-
tors sometimes attempt to requalify offences in
order to enjoy more favourable limitation pe-
riods. In Romania, a crime may be prosecuted
as part of a continuous crime: when an offence
is continuous, SOL runs as from the day when
the action or inaction ceases or the last act is
performed (when the crime is habitual). This
qualification can theoretically postpone the
start date of SOL. Also in other countries, such
as Portugal, this can happen though it is consi-
dered a rare possibility, or else it would jeopar-
dise the reputation of practitioners.
Another crucial issue where prosecutors can
play a relevant role is the practice of speeding
up a case or renouncing to go ahead with it ba-
sed on their decision and on their active, discre-
tionary actions.
Some countries provide for a strict framework
on this issue: prosecutorsmust prosecute cases,
regardless of their SOL-foreseeable outcome:
the principles of legality and mandatory pro-
secution are laid down in almost all the coun-
tries considered (except for Portugal), though
the principle is not implemented everywhere
in practice. Practitioners from Italy and Bulga-
ria are concordant that it is a common practice
that prosecutors choose not to prosecute cases
that have no real chances to be adjudicated be-
fore SOL terms expire. Romania has a similar
legal framework: prosecutors have an obliga-
tion to start a criminal investigation but they
can decide to waive action if they believe there
is no public interest in pursuing it. This is clearly
the case when starting a procedure that cannot
come to an end. Practice shows how prosecu-
tors often choose to let an offence become sta-
tute barred.
Portugal is a unique case in this respect. Accor-
ding to article 277 of the Code of Criminal Pro-
cedure, if criminal liability cannot be established
in Court because of SOL, public prosecution is
prevented from proceeding with the investiga-
tion. The same thing happens with proceedin-
gs at an advanced stage of the investigations:
based on the principle of procedural economy
and the prohibition to pursue useless acts, the
public prosecutor’s office should decide for its
dismissal.
On the other hand, some countries lay down ru-
les that allow for proceedings to be labelled as
urgent and to speed up schedules and activities
to avoid the expiry of limitation periods.
Marking a case urgent when there is a risk of
it becoming statute barred, is a very common
judicial practice among Greek prosecutors.
A Greek law
42
also provides for setting the trial
date for corruption-related offences with abso-
lute priority, not allowing for any adjournment.
A recent anti-austerity strike by Greek lawyers
which lasted for approximately eight months,
paralysed the country’s judicial system; howe-
ver, cases close to their limitation period were
the only ones that were tried. Quite obviously,
there were fears that a number of cases would
become statute barred.
Portugal has a similar practice that allows for
the prioritisation of proceedings about to be-
come statute barred
43
: prosecutors can thus
assign higher priority thereto, labelling case
records as urgent. A prosecutor in charge of
a case has an obligation to duly end it before
SOL terms expire: when a case reaches its SOL,
the prosecutor must report this to his superior,
who will assess if some responsibilities are to
be ascribed thereto for this outcome.