Prosecution ex officio or following a complaint by the victim? An analysis on offences related to violence against women and sexual offences
| Published date | 01 June 2021 |
| Author | Tomohiro Nakane |
| DOI | 10.1177/20322844211008233 |
| Date | 01 June 2021 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2021, Vol. 12(2) 146–165
© The Author(s) 2021
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DOI: 10.1177/20322844211008233
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Prosecution ex officio or
following a complaint by the
victim? An analysis on offences
related to violence against
women and sexual offences
Tomohiro Nakane
Hitotsubashi University Graduate School of Law and Faculty of Law, Kunitachi, Japan
Abstract
In recent years, there has been a tendency in cases of violence against women and sexual offences to
prosecute them, regardless of whether the victim files their complaint. This article investigates the
recent changes in European criminal law in this respect. The results indicate a variety of approaches
under European Union (EU) law, Council of Europe (CoE) law and domestic approaches. Fur-
thermore, existing EU and CoE law has not suggested an ‘in-between’approach, which exists in
some national legal systems such as that of Germany. On that basis, this article suggests a number of
amendments to current EU and CoE law.
Keywords
Complaints made by victims, Complaint offence, Antragsdelikte
Introduction
Offences prosecuted following a complaint made by the victim are widely found in countries with
civil law systems, for example, in German-speaking countries (Germany, Austria and Switzerland).
This system is called ‘Antragsdelikte’. In common law countries, there is no corresponding term for
such offences. This article will refer to these matters as ‘complaint offences’, whereas an offence
prosecuted independent of a complaint lodged by a victim will be termed an ‘ex officio offence’. The
requirement for a complaint has been preferred in order to protect victims, but as this article will
show, it has been subject in recent years to criticism both from within scholarship on the law adopted
Corresponding author:
Tomohiro Nakane, Hitotsubashi University Graduate School of Law and Faculty of Law, 2-1 Naka, Kunitachi 186-8601,
Japan.
Email: tochopa875@gmail.com
by the EU and by the CoE, and that on the law adopted by the United Nations (UN) –especially in
cases of violence against women and sexual offences. Since the late 1990s, the UN has reques ted
that violence against women and sexual offences be prosecuted independently from complaints by
victims.
1
Since the early 2000s, similar discussions have been taking place at the CoE and EU
levels. Nevertheless, the move from prosecution following a complaint to ex officio prosecution has
not received scholarly attention. Furthermore, the literature has not discussed a third possible
alternative, between complaint and ex officio offences, which is the focus of this article. The
possibility to incorporate restorative justice into the context of complaint offences has also not been
considered extensively. The requirement for prior complaint by the victim is considered a trivial
issue,
2
and existing legislative reforms are not seriously disputed at the national level.
3
Against this background, this article first examines the evolution of EU and CoE law in this field
and the feasibility of an intermediate solution between complaint and ex officio offences. On the one
hand, the requirement for lodging a complaint is significant for the protection of the victim and
a transition to ex officio prosecution could cause secondary victimisation. On the other hand, a bald
complaint offence could also prevent an offender from being punished. These are conflicting
interests that the rules on criminal procedure need to reconcile; this article aims to enhance the
understanding of both interests and the extent to which they could converge. In this respect, the
example of the German criminal law, and especially the possibility of restorative justice accom-
panying complaint offences, as a possible source of inspiration for a legal solution is analysed.
The remainder of this article is organised as follows: the next section focuses on the existing legal
framework on the duty to prosecute offences of violence against women and sexual offences ex
officio or as complaint offences in EU Member States. The following section examines relevant
developments under CoE and EU law. The analysis then shifts to the existing victim protection
measures in the European context. The fourth section discusses a number of sexual offences and
offences of violence against women, which have not been the object of regulation by international
law, drawing some inspiration from the legal solutions in the German-speaking countries –namely,
Germany, Austria and Switzerland. The fifth section draws together the conclusions of this article.
Ex officio Prosecution of violence against women and sexual offences
in Europe
Domestic legislation across EU Member States
According to the 2015 European Commission enquiry on the legal implications of EU accession to
the Istanbul Convention,
4
criminal procedures in EU Member States follow different traditions in
terms of official decisions and private initiatives to prosecute.
5
However, domestic violence and
1. SeeUNGA Res 52/86 (12 December 1997), Crime prevention and criminal justice measures to eliminate violence against
women: Model Strategies and Practical Measures Art. 7.
2. Thomas Weigend, Deliktsopfer und Strafverfahren (Duncker & Humblot 1989) 446.
3. Peter Rieß, ‘Die Rechtsstellung des Verletzten im Strafverfahren’in St¨
andigen Deputation des Deutschen Juristentages
(eds), Verhandlungen des fünfundfünfzigsten Deutschen Juristentages, Hamburg 1984 Bd. 2 (C.H. Beck 1984) C67.
4. Council of Europe Convention on preventing and combating violence against women and domestic violence of 11 May
2011, CETS 210 (Istanbul Convention).
5. Kev¨
at Nousiainen and Christine Chinkin, ‘Legal implications of EU accession to the Istanbul Convention’Report
prepared for the European Commission (2015) 75 <https://op.europa.eu/en/publication-detail/-/publication/4e3568b9-
013b-11e6-b713-01aa75ed71a1/language-en> accessed 14 March 2021.
Nakane 147
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