The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
According to the Austrian Constitution, criminal proceedings are to be oral, public and to be governed by the principle of accusatory procedure (Anklageprozess, Sect. 90). This means that there has to be a separation between prosecutorial and judicial functions; they have to be exercised by different bodies. Criminal proceedings, therefore, are initiated as well as determined in scope by the public prosecution. Before a case can be tried in a criminal court the public prosecutor has to file criminal charges. The court then is limited to the extent of the charge put before it. If, in the course of the proceedings, the public prosecutor drops the charge, which is possible until the end of the main trial, the court must dismiss the case, or after opening of the full trial, acquit the accused (principle of accusation, Anklagegrundsatz or Akkusationsprinzip).
An important adversarial element is the equality of the prosecution and the defence. This applies at least to the main trial; in the pre-trial phase the public prosecution enjoys some advantages over the defence.
If the public prosecutor wants to charge a person with a crime falling within the jurisdiction of the jury court or the laymen’s court he has to bring in a bill of indictment before the investigating judge. The bill of indictment has to contain the motivated charge together with the necessary motions to take evidence. The accused has the right to lodge an objection against the indictment within 14 days, which is decided upon by the court of appeal. Such objections are very rarely lodged and are very rarely successful. Basically, the court of appeal may dismiss the objection, dismiss the case, refer the case back to the investigating judge to apply diversion, provisionally dismiss the charge to have more evidence taken, or confirm the indictment.
The public prosecutor is not allowed to charge the suspect with a less serious offence, despite the existence of sufficient evidence to charge the suspect with a more serious crime. Plea bargaining does not exist.
During the main trial the public prosecutor may extend the charge to further offences. It is not necessary, however, to modify the charge just because of a different legal assumption. The public prosecutor has to extend the charge if, during the main trial, the accused incurs suspicion to have committed another offence. If the court does not include this offence into the sentence, the court has to reserve the right to prosecute within the judgement. If this right is not reserved, and the prosecutor does not appeal against the judgement, prosecution only is possible by reopening of appeal. Otherwise, the public prosecutor has to start provisional inquiries, to petition the investigating judge to begin a preliminary investigation or to bring in the charge within 14 days.
The presiding judge is the first to examine the accused, witnesses and experts. After that he invites the associate judges, laymen, jurors, the public prosecutor, the private participant, the defence counsel and the accused to ask questions. The same procedure is true for accused witnesses. Cross examination is not known in Austrian procedural law.
After the presiding judge has closed the taking of evidence within the main trial, the public prosecutor makes his closing speech in which he may sum up the evidence and asks for the conviction of the accused according to the legal provisions the accused has being charged with.
The court may change or modify the charge with regard to legal questions on its own initiative, but not with regard to the facts. The identity of facts has to be observed.
Whereas according to the provisional Code of Criminal Procedure 1850 the public prosecutor was obliged to request the sentence to be imposed, and the court was not allowed to impose a harsher sentence, the Code of Criminal Procedure 1873 prohibits the prosecutor from asking for a concrete punishment in the interest of a totally autonomous judicial decision (Sect. 255 subs. 1 CCP).
After the closing speech by the public prosecutor the private participant may make his closing remarks, and at the end, the accused and his defence counsel address the court for the defence. When the public prosecutor responds, the accused and his defence counsel have the last word in any case.
The Role of the Public Prosecutor in Court
According to the Austrian Constitution, criminal proceedings are to be oral, public and to be governed by the principle of accusatory procedure (Anklageprozess, Sect. 90). This means that there has to be a separation between prosecutorial and judicial functions; they have to be exercised by different bodies. Criminal proceedings, therefore, are initiated as well as determined in scope by the public prosecution. Before a case can be tried in a criminal court the public prosecutor has to file criminal charges. The court then is limited to the extent of the charge put before it. If, in the course of the proceedings, the public prosecutor drops the charge, which is possible until the end of the main trial, the court must dismiss the case, or after opening of the full trial, acquit the accused (principle of accusation, Anklagegrundsatz or Akkusationsprinzip).
An important adversarial element is the equality of the prosecution and the defence. This applies at least to the main trial; in the pre-trial phase the public prosecution enjoys some advantages over the defence.
If the public prosecutor wants to charge a person with a crime falling within the jurisdiction of the jury court or the laymen’s court he has to bring in a bill of indictment before the investigating judge. The bill of indictment has to contain the motivated charge together with the necessary motions to take evidence. The accused has the right to lodge an objection against the indictment within 14 days, which is decided upon by the court of appeal. Such objections are very rarely lodged and are very rarely successful. Basically, the court of appeal may dismiss the objection, dismiss the case, refer the case back to the investigating judge to apply diversion, provisionally dismiss the charge to have more evidence taken, or confirm the indictment.
The public prosecutor is not allowed to charge the suspect with a less serious offence, despite the existence of sufficient evidence to charge the suspect with a more serious crime. Plea bargaining does not exist.
During the main trial the public prosecutor may extend the charge to further offences. It is not necessary, however, to modify the charge just because of a different legal assumption. The public prosecutor has to extend the charge if, during the main trial, the accused incurs suspicion to have committed another offence. If the court does not include this offence into the sentence, the court has to reserve the right to prosecute within the judgement. If this right is not reserved, and the prosecutor does not appeal against the judgement, prosecution only is possible by reopening of appeal. Otherwise, the public prosecutor has to start provisional inquiries, to petition the investigating judge to begin a preliminary investigation or to bring in the charge within 14 days.
The presiding judge is the first to examine the accused, witnesses and experts. After that he invites the associate judges, laymen, jurors, the public prosecutor, the private participant, the defence counsel and the accused to ask questions. The same procedure is true for accused witnesses. Cross examination is not known in Austrian procedural law.
After the presiding judge has closed the taking of evidence within the main trial, the public prosecutor makes his closing speech in which he may sum up the evidence and asks for the conviction of the accused according to the legal provisions the accused has being charged with.
The court may change or modify the charge with regard to legal questions on its own initiative, but not with regard to the facts. The identity of facts has to be observed.
Whereas according to the provisional Code of Criminal Procedure 1850 the public prosecutor was obliged to request the sentence to be imposed, and the court was not allowed to impose a harsher sentence, the Code of Criminal Procedure 1873 prohibits the prosecutor from asking for a concrete punishment in the interest of a totally autonomous judicial decision (Sect. 255 subs. 1 CCP).
After the closing speech by the public prosecutor the private participant may make his closing remarks, and at the end, the accused and his defence counsel address the court for the defence. When the public prosecutor responds, the accused and his defence counsel have the last word in any case.
