Article 26 of the Organized Crime Convention states that "[e]ach State Party shall take appropriate measures to encourage persons who participate or who have participated in organized criminal groups to supply information."
Punishment mitigation occurs when a person accused of a crime provides substantial cooperation in the investigation or prosecution of a serious criminal offence, including cases in which the accused becomes an informant. In some jurisdictions, informants are also referred to as "justice collaborators," and in others "cooperating witnesses" (UNODC, 2008). The Organized Crime Convention requests that State parties consider punishment mitigation provisions for accused persons who provide substantial cooperation in the investigation or prosecution of an offence covered by the Convention.
Article 26. Measures to enhance cooperation with law enforcement authorities
1. Each State Party shall take appropriate measures to encourage persons who participate or who have participated in organized criminal groups:
(a) To supply information useful to competent authorities for investigative and evidentiary purposes on such matters as: (i) The identity, nature, composition, structure, location or activities of organized criminal groups; (ii) Links, including international links, with other organized criminal groups; (iii) Offences that organized criminal groups have committed or may commit;
(b) To provide factual, concrete help to competent authorities that may contribute to depriving organized criminal groups of their resources or of the proceeds of crime.
2. Each State Party shall consider providing for the possibility, in appropriate cases, of mitigating punishment of an accused person who provides substantial cooperation in the investigation or prosecution of an offence covered by this Convention.
Some countries in the civil law tradition follow the principle of mandatory prosecution, whereby prosecution is bound by the legality principle. The release of a person from criminal prosecution, liability or punishment occurs only in rare circumstances prescribed by law. The cooperation of an offender can also be taken into account as a mitigating circumstance at the sentencing stage.
Generally, the civil law tradition permits discretion only in limited situations, such as "petty" offences, or in strictly defined cases. Allegations of prosecutorial misconduct could be brought before the courts at any time, including for selective prosecution based on prohibited considerations. In addition, many civil law jurisdictions have few explicit policies to encourage persons who participated in the commission of serious offences to supply information to the authorities.
Countries in the common law legal tradition do not generally have legal barriers to mitigating punishment. These countries generally allow for both discretionary immunity from prosecution for cooperating offenders, and the possibility of mitigated sentences to cooperating defendants. In addition, in common law systems, the discretion to prosecute is subject to specific legal and procedural oversight mechanisms. Some common law countries have specific codes, principles, or prosecution policies to govern the exercise of prosecutorial discretion, which are based on legal considerations such as strength of evidence, public interest, deterrence, adequacy of other remedies, and collateral consequences, rather than on political or economic factors (Brand and Getzler, 2015; Dammer and Albanese, 2014; Merryman and Pérez-Perdomo, 2007). For example, prosecutors could decline prosecution if there was no substantial public interest or if there was an acceptable non-criminal alternative to prosecution.
Despite these differences in legal traditions, it is clear that the use of informants (justice collaborators, cooperating witnesses) is a common and cost-effective investigative tool in cases of organized crime and it is discussed in Module 8. The legal manner in which these informants are rewarded for their information is addressed differently under divergent legal traditions.
The decision to prosecute (plea bargaining)
Not all States have a system that allows prosecutors discretion as to when to prosecute or negotiate criminal charges. Some States however, allow for a process called "plea bargaining". In those States where prosecutorial discretion is available - usually common law jurisdictions - the defendant may agree with the prosecutor to plead guilty to a particular charge in return for some concession from the prosecutor.
Plea bargaining is usually used for practical reasons, such as the following:
When the defendant voluntarily cooperates with authorities, by providing useful information to assist law enforcement agencies, the judge may be more lenient in sentencing if the cooperation proves to assist in making a successful prosecution possible, or recovering the proceeds of crime.
It is critical for States to implement guidelines or other measures to ensure consistency in prosecution decisions, so that there is due regard for the public interest and defendant's right to fair trial (Di Luca, 2005; Herman, 2012; Turner, 2016-17).