Apart from discontinuation and indictment, the public prosecutor’s office can also offer the accused a diversion. The great advantage of diversion is that the accused remains blameless – there is therefore no risk of conviction. For cost reasons, too, it can sometimes be quite advisable to accept the diversion proposal.
The general requirements for such diversion are:
- The facts of the case have been sufficiently clarified (i.e. the public prosecutor’s office could file charges)
- The penalty is not more than five years
- No severe guilt
- No occurrence of death (with certain exceptions).
In the case of juvenile offenses, there is no restriction of the penalty to five years. Unlike in the case of adults, general prevention considerations also play no role.
If these conditions are met, the public prosecutor shall propose specific diversionary measures to the defendant. These may be the payment of a sum of money, the provision of community service, the determination of a probationary period with or without the assumption of duties, or a reconciliation of offenses. The public prosecutor is then bound by this proposal. If the defendant does not accept the proposal, it becomes irrelevant and the public prosecutor’s office may make a new diversion proposal. However, the defendant may also request that the proceedings be continued.
If the defendant accepts the proposal and performs the diversionary measure, the public prosecutor’s office withdraws from the prosecution for good.
The defendant himself can apply for diversion only in the main proceedings, before that he can only suggest it.
In any case, it is advisable to consult with a lawyer on how to handle a diversion proposal.
