Principles of mandatory and discretionary prosecution

Abstract

This article attempts a novel approach —at least for the Chilean doctrine — to the elusive concepts of obligation and discretion of criminal prosecution by the prosecutor office. This is carried out with the aim of enabling the interested reader to properly distinguish and individualize them when examining a specific procedural system. It also attempts to distinguish them from other related concepts, which usually overlap and confuse, thereby inhibiting dialogue about the doctrine. Sections II and III review how local and comparative doctrines address mandatory and discretionary prosecution and legality, as well as others that are different in name but not in content. Section IV gives a brief but panoramic look at the Chilean criminal system regarding the real and empirical validity of both concepts.