The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
The public prosecution service is independent from the trial court and cannot be given any orders by the judge(s). At the court session the public prosecutor will present the judge and the parties the view of the prosecution. As such, the public prosecution service is sometimes considered to be a party in the case, next to the accused and the victim as partie civile.
The public prosecution service always attends the criminal trial in the person of the public prosecutor or one of his substitutes.
The court competence and the charge
In Belgian criminal law, a statutory triple division of criminal offences is used: crimes (crimes), misdemeanours (délits) and contraventions (contraventions). The competence of the criminal courts is related to this triple division of offences. In that perspective, it should be noted that police courts are competent to deal with all contraventions as well as some misdemeanours enumerated in Sect. 138 of the CCP, e.g. traffic offences and the resulting misdemeanour of assault and battery. The correctional courts are in principle competent to handle all misdemeanours, whereas crimes come before the Assize Courts.
However, the necessary differentiation should be made to this general division of competence. It is indeed important to stress the fact that the public prosecution office on the one hand, and the investigating jurisdictions – the Council Chamber (Chambre du Conseil) and the Indicting Chamber (Chambre des mises en accusation) – on the other hand, are qualified to refer someone who is suspected of having committed a crime to the correctional court (the so-called correctionalisation) and someone who is under suspicion of having perpetrated a misdemeanour to the police court (the so-called contraventionalisation), both on the condition that mitigating circumstances are present (Sects. 2 and 4 of the Act of October 4, 1867 concerning the mitigating circumstances).
In relation to the control of judicial competence, a distinction should be made between the referral to the trial court by way of a direct summoning, and the referral to the trial court by an investigating jurisdiction.
When a case has been referred to the trial court by way of a direct summoning, the judge has to check whether he is competent on the basis of the qualification of the facts mentioned in the summons. When he is not competent in relation to this qualification, he has to consider himself incompetent, even if he considers the facts are not correctly qualified. When a crime has been ‘correctionalised’ or a misdemeanour ‘contraventionalised’ by a direct summons, the judge is only competent if he agrees with the decision to denature taken by the public prosecutor (Sects. 3 and 5 of the Act). Only when this first test results in the prima facie competence of the court, the judge can check the right qualification. This implies the judge has to qualify the facts as rightly and highly as possible, i.e. the qualification with the highest punishment provided. After such a re-qualification, the trial judge needs to check for a second time whether he is competent.
When a case has been referred to the trial court by an investigating jurisdiction, the competence first has to be checked on the basis of the qualification mentioned in the referring decision. In principle, the same double test applies as when the case would have been directly summoned. However, when the referral implies a correctionalisation or a contraventionalisation, the first test is somewhat complicated. A possible decision to denature suggested by the investigating jurisdiction in the referring decision, is binding on the trial judge (Sects. 3 and 5 of the Act) if the mitigating circumstances are correct, if they are specifically mentioned and if they can be lawfully taken in account. In this light it has to be noted that a denature decision is in principle not allowed for offences punishable with more than twenty years of imprisonment. Finally, the mitigating circumstances mentioned have to exist. If this first test has a negative result, the judge will have to declare himself incompetent to handle the case.
The trial in the police courts and the correctional courts
Sections 153 and 190 to 190ter CCP give some indications concerning the course of the trial at the police courts, respectively the correctional courts. Their sketch of the course of the trial, however, is neither complete nor imperative.
Usually, the trial before the police courts and the correctional courts is opened with the questioning of the accused by the judge(s). Only Sect. 190 CCP mentions that the accused has to be interviewed. Such an interrogation is not required on the pain of nullity but can be demanded on the ground of the rights of the defense. The accused is always entitled at this stage of the proceedings to conduct his own defense with, or without, the help of a lawyer. He may do this orally, but is also entitled to present a written statement. Of course, he cannot take the oath, nor can he be compelled to answer questions, or to speak out in his defense.
Depending on the judge, the following important step is the examination of the witnesses who are called by the public prosecutor, the defense and the partie civile. The judge discretionary decides on the necessity or desirability of their examination, taking the rights of the defense into account.
According to criminal procedure law, a witness is the person who in front of the judge testifies under oath about what he has observed in relation to the charge against the accused. The CCP contains no rules concerning the way in which the examination of the witness should take place. Next to the power of the judge to examine witnesses, the public prosecutor, as well as the accused or his lawyer can only examine witnesses in an indirect way. Thus, they have to ask the judge whether he is willing to ask the witness the questions they would like to have answered.
In principle, a witness is obliged to answer every question. Only when he will incriminate himself by answering, or when he is bound by the professional vow, he does not have to reply. The witness is not only obliged to answer, but he is also obliged to speak the truth, since the making of a false statement is incriminated in the Sects. 218 and 219 of the Penal Code (CC). In any case, a witness can only be held responsible for a false statement when he holds on to it until the closing of the debates.
During the examination, the judge can show the accused, the witnesses and the parties concerned the pieces of evidence. If it is necessary in his opinion, he may even relocate the trial to the scene of the offence or another relevant place and continue the inquiry there under the same conditions as in court. Moreover, he is empowered to appoint experts to give their opinion about one or more aspects of the case. However, the judge is not entitled to order the public prosecutor to make certain additional inquiries. He can only suggest that such an initiative would be welcome.
The real debate in court concerns the arguments put forward by the public prosecutor, the partie civile and the defense. The public prosecutor can sum up the case, but this is not necessary. In any case he is obliged to make a final statement with respect to the guilt of the accused and the sentence. The counsel of the accused can present his defense in the way he prefers. He has to be given the chance to answer to any piece of evidence put forward by the public prosecutor in his speech and final statement. The accused always has to be given the last word, when he asks for it.
The judge officially closes the proceedings, which can only be reopened when a new piece of evidence reaches the judge during the period of his deliberation. A reopening is decided either on the initiative of the judge, or on request of one of the parties.
After the closing of the debate the judge evidently has to answer several formal and material questions. In relation to the penal action at law, the answer to the guilt and the punishment of the accused cannot be given in two separate judgements. Furthermore, it should be noted that the judge is not bound by the sentence request made by the public prosecutor.
The Role of the Public Prosecutor in Court
The public prosecution service is independent from the trial court and cannot be given any orders by the judge(s). At the court session the public prosecutor will present the judge and the parties the view of the prosecution. As such, the public prosecution service is sometimes considered to be a party in the case, next to the accused and the victim as partie civile.
The public prosecution service always attends the criminal trial in the person of the public prosecutor or one of his substitutes.
The court competence and the charge
In Belgian criminal law, a statutory triple division of criminal offences is used: crimes (crimes), misdemeanours (délits) and contraventions (contraventions). The competence of the criminal courts is related to this triple division of offences. In that perspective, it should be noted that police courts are competent to deal with all contraventions as well as some misdemeanours enumerated in Sect. 138 of the CCP, e.g. traffic offences and the resulting misdemeanour of assault and battery. The correctional courts are in principle competent to handle all misdemeanours, whereas crimes come before the Assize Courts.
However, the necessary differentiation should be made to this general division of competence. It is indeed important to stress the fact that the public prosecution office on the one hand, and the investigating jurisdictions – the Council Chamber (Chambre du Conseil) and the Indicting Chamber (Chambre des mises en accusation) – on the other hand, are qualified to refer someone who is suspected of having committed a crime to the correctional court (the so-called correctionalisation) and someone who is under suspicion of having perpetrated a misdemeanour to the police court (the so-called contraventionalisation), both on the condition that mitigating circumstances are present (Sects. 2 and 4 of the Act of October 4, 1867 concerning the mitigating circumstances).
In relation to the control of judicial competence, a distinction should be made between the referral to the trial court by way of a direct summoning, and the referral to the trial court by an investigating jurisdiction.
When a case has been referred to the trial court by way of a direct summoning, the judge has to check whether he is competent on the basis of the qualification of the facts mentioned in the summons. When he is not competent in relation to this qualification, he has to consider himself incompetent, even if he considers the facts are not correctly qualified. When a crime has been ‘correctionalised’ or a misdemeanour ‘contraventionalised’ by a direct summons, the judge is only competent if he agrees with the decision to denature taken by the public prosecutor (Sects. 3 and 5 of the Act). Only when this first test results in the prima facie competence of the court, the judge can check the right qualification. This implies the judge has to qualify the facts as rightly and highly as possible, i.e. the qualification with the highest punishment provided. After such a re-qualification, the trial judge needs to check for a second time whether he is competent.
When a case has been referred to the trial court by an investigating jurisdiction, the competence first has to be checked on the basis of the qualification mentioned in the referring decision. In principle, the same double test applies as when the case would have been directly summoned. However, when the referral implies a correctionalisation or a contraventionalisation, the first test is somewhat complicated. A possible decision to denature suggested by the investigating jurisdiction in the referring decision, is binding on the trial judge (Sects. 3 and 5 of the Act) if the mitigating circumstances are correct, if they are specifically mentioned and if they can be lawfully taken in account. In this light it has to be noted that a denature decision is in principle not allowed for offences punishable with more than twenty years of imprisonment. Finally, the mitigating circumstances mentioned have to exist. If this first test has a negative result, the judge will have to declare himself incompetent to handle the case.
The trial in the police courts and the correctional courts
Sections 153 and 190 to 190ter CCP give some indications concerning the course of the trial at the police courts, respectively the correctional courts. Their sketch of the course of the trial, however, is neither complete nor imperative.
Usually, the trial before the police courts and the correctional courts is opened with the questioning of the accused by the judge(s). Only Sect. 190 CCP mentions that the accused has to be interviewed. Such an interrogation is not required on the pain of nullity but can be demanded on the ground of the rights of the defense. The accused is always entitled at this stage of the proceedings to conduct his own defense with, or without, the help of a lawyer. He may do this orally, but is also entitled to present a written statement. Of course, he cannot take the oath, nor can he be compelled to answer questions, or to speak out in his defense.
Depending on the judge, the following important step is the examination of the witnesses who are called by the public prosecutor, the defense and the partie civile. The judge discretionary decides on the necessity or desirability of their examination, taking the rights of the defense into account.
According to criminal procedure law, a witness is the person who in front of the judge testifies under oath about what he has observed in relation to the charge against the accused. The CCP contains no rules concerning the way in which the examination of the witness should take place. Next to the power of the judge to examine witnesses, the public prosecutor, as well as the accused or his lawyer can only examine witnesses in an indirect way. Thus, they have to ask the judge whether he is willing to ask the witness the questions they would like to have answered.
In principle, a witness is obliged to answer every question. Only when he will incriminate himself by answering, or when he is bound by the professional vow, he does not have to reply. The witness is not only obliged to answer, but he is also obliged to speak the truth, since the making of a false statement is incriminated in the Sects. 218 and 219 of the Penal Code (CC). In any case, a witness can only be held responsible for a false statement when he holds on to it until the closing of the debates.
During the examination, the judge can show the accused, the witnesses and the parties concerned the pieces of evidence. If it is necessary in his opinion, he may even relocate the trial to the scene of the offence or another relevant place and continue the inquiry there under the same conditions as in court. Moreover, he is empowered to appoint experts to give their opinion about one or more aspects of the case. However, the judge is not entitled to order the public prosecutor to make certain additional inquiries. He can only suggest that such an initiative would be welcome.
The real debate in court concerns the arguments put forward by the public prosecutor, the partie civile and the defense. The public prosecutor can sum up the case, but this is not necessary. In any case he is obliged to make a final statement with respect to the guilt of the accused and the sentence. The counsel of the accused can present his defense in the way he prefers. He has to be given the chance to answer to any piece of evidence put forward by the public prosecutor in his speech and final statement. The accused always has to be given the last word, when he asks for it.
The judge officially closes the proceedings, which can only be reopened when a new piece of evidence reaches the judge during the period of his deliberation. A reopening is decided either on the initiative of the judge, or on request of one of the parties.
After the closing of the debate the judge evidently has to answer several formal and material questions. In relation to the penal action at law, the answer to the guilt and the punishment of the accused cannot be given in two separate judgements. Furthermore, it should be noted that the judge is not bound by the sentence request made by the public prosecutor.
