The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
In fact, as far as the Republic of Cyprus is concerned, any reference to ‘a relation between the public prosecutor and the Minister of Justice’ is inappropriate simply because no such relation exists.
The Minister of Justice is a member of the Executive. The Attorney General is an independent officer of the Republic and his powers derive directly from the Constitution itself. As expressly set out in sect. 112(2) Constitution, he is the Head of the Law Office of the Republic ‘which shall be an independent office and shall not be under any Ministry’.
The President of the Republic appoints the Attorney General and, thereupon, he enjoys security of tenure until the age of 68. Removal of the Attorney General is not possible except on extremely exceptional grounds set out in the Constitution itself (e.g. mental illness). This security of tenure is conductive to the exercise of his duties, excluding the possibility of interference on the part of the executive. The Attorney General exercises the powers vested in him in person or through officers subordinate to him, acting under and in accordance with his instructions. The officers of the Law Office are advocates registered with the Cyprus Bar Association. The Public Service Commission appoints them, which is a constitutionally established, independent body responsible for all appointments of personnel in the public sector. Thus, the personnel of the Law Office of the Republic are public servants and their terms and conditions of employment are set out in the Public Service Law. They enjoy security of tenure until the age of 60 and no one can dismiss them otherwise than through a disciplinary procedure prescribed by law.
The Law Office
The Law Office of the Republic, headed by the Attorney General (and the Deputy Attorney General) consists of legal officers of five ranks: Public Prosecutors, Counsels of the Republic, Counsels of the Republic A´, Senior Counsels of the Republic and Attorneys of the Republic. Through practice, some members of the Office may have acquired an expertise in certain types of criminal cases, despite this formal specialisation does not exist. This is an inevitable consequence of small scale since the total population of the Republic of Cyprus does not exceed 800,000.
The prosecution service of the Republic is responsible for the handling of criminal cases before the Courts. In cases before the Assize Courts – i.e. criminal courts consisting of three professional judges – the prosecution is always headed by an advocate of the Law Office of the Republic. In cases tried summarily by single judges in District Courts, it is possible for a legally trained police officer to act for the prosecution. However, in such a case, he acts, at all times, under the directions and the instructions of the Law Office of the Republic.
The tasks and duties of the prosecution service are not confined to the presentation of criminal cases before the Courts. The prosecutors of the Law Office of the Republic work in close co-operation with the police and, at any stage during the investigation; police may be ask for provide legal advice and guidance in the context of the investigation. When the investigation process is completed, the police submit the file to the Law Office of the Republic. A prosecutor of the Law Office studies the file for ascertaining whether there is adequate evidence that could substantiate charges for any offence. The decision whether to prosecute or not is then made. Furthermore, the prosecutors of the Law Office handle all criminal appeals before the Supreme Court.
The Attorney General
The highest authority within the prosecution service is the Attorney General. He alone prescribes prosecution policy and supervises its implementation. It is important to appreciate that the executive has no authority in the matter. If, for example, the Ministry of Justice and Public Order would wish to promote a policy decision for first-time drug users not to be prosecuted, the most the Minister can do is to make a suggestion to this effect to the Attorney General. However, it is for the Attorney General to make the decision.
In the exercise of his tasks in prescribing prosecution policy, the Attorney General issues, from time to time, guidelines to the advocates of his office who are involved in the daily process of decision-making. These guidelines may relate to any matter concerning prosecution policy such as, the setting of criteria for determining which cases should be forwarded for trial by the Assize Court, the prescription of cases, which require specific handling, the description of special matters that need to be taken into account and so forth. Furthermore, it is usual practice for the Attorney General to set criteria and guidelines, which prosecutors should take into account when making the decision whether to prosecute, or not. The state of health of the person concerned, for example, is a factor that may justify a decision not to prosecute. Similarly, special considerations apply to cases where the wrongdoer is a person under age.
The importance of guidelines is clear if viewed in the light of the fact that the decision to prosecute is discretionary. Even where there is evidence, which could have substantiated charges, there is no legal obligation to prosecute. The Constitution expressly provides that the Attorney General exercises his powers ‘in the public interest’ and he himself is the sole judge of that. At any time, he may discontinue any criminal proceedings irrespective of the stage thereof, without having to give reasons for his decision. Similarly, a decision not to prosecute in any given case, is not subject to any pre-requisites, nor is the Attorney General legally accountable to any other authority in this respect.
Obviously, the constitutional legislator considered it necessary to grant the Attorney General very wide powers and virtually unfettered discretion in order to secure real and effectual independence for the office. However, the Attorney General does not operate in an arbitrary manner. However, under no legal obligation to do so, the Attorney General appears before Parliamentary Committees whenever invited and answers questions about serious matters of public interest dealt with by his office.
Furthermore, it is quite usual for the Attorney General to issue written statements informing the public of his decisions on major matters of public interest and explaining the rationale thereof.
Right to institute criminal proceedings
The Office of the Attorney General has a monopoly in the prosecution of offences triable by the Assize Court, that is, offences punishable with imprisonment exceeding five years. As expressly provided by sect. 107 Code of Criminal Procedure (hereafter CCP), only the Attorney General can file a charge before the Assize Court. Regarding offences, which are triable summarily, case law has recognised the right of any person who is the victim of a criminal offence, to institute private criminal proceedings against the wrongdoer. However, by no means is this right unlimited. In some cases prescribed by law, prior approval by the Attorney General is necessary; and, in any event, the Attorney General may, at any stage, take over or discontinue any private criminal proceedings.
Settlement
Settlement of criminal cases out of court is a practice unknown to the criminal justice system of Cyprus. Nor is pleabargaining institutionalised in any way similar to practices adopted in some other countries. However, given the extent of the Attorney General’s discretionary powers, there are cases where there is some sort of settlement. For example, if the prosecution charges an accused person with a number of burglaries and he admits most of them, the prosecution would, most probably, discontinue proceedings in relation to those not admitted.
The Relation between the Public Prosecutor and the Minister of Justice
In fact, as far as the Republic of Cyprus is concerned, any reference to ‘a relation between the public prosecutor and the Minister of Justice’ is inappropriate simply because no such relation exists.
The Minister of Justice is a member of the Executive. The Attorney General is an independent officer of the Republic and his powers derive directly from the Constitution itself. As expressly set out in sect. 112(2) Constitution, he is the Head of the Law Office of the Republic ‘which shall be an independent office and shall not be under any Ministry’.
The President of the Republic appoints the Attorney General and, thereupon, he enjoys security of tenure until the age of 68. Removal of the Attorney General is not possible except on extremely exceptional grounds set out in the Constitution itself (e.g. mental illness). This security of tenure is conductive to the exercise of his duties, excluding the possibility of interference on the part of the executive. The Attorney General exercises the powers vested in him in person or through officers subordinate to him, acting under and in accordance with his instructions. The officers of the Law Office are advocates registered with the Cyprus Bar Association. The Public Service Commission appoints them, which is a constitutionally established, independent body responsible for all appointments of personnel in the public sector. Thus, the personnel of the Law Office of the Republic are public servants and their terms and conditions of employment are set out in the Public Service Law. They enjoy security of tenure until the age of 60 and no one can dismiss them otherwise than through a disciplinary procedure prescribed by law.
The Law Office
The Law Office of the Republic, headed by the Attorney General (and the Deputy Attorney General) consists of legal officers of five ranks: Public Prosecutors, Counsels of the Republic, Counsels of the Republic A´, Senior Counsels of the Republic and Attorneys of the Republic. Through practice, some members of the Office may have acquired an expertise in certain types of criminal cases, despite this formal specialisation does not exist. This is an inevitable consequence of small scale since the total population of the Republic of Cyprus does not exceed 800,000.
The prosecution service of the Republic is responsible for the handling of criminal cases before the Courts. In cases before the Assize Courts – i.e. criminal courts consisting of three professional judges – the prosecution is always headed by an advocate of the Law Office of the Republic. In cases tried summarily by single judges in District Courts, it is possible for a legally trained police officer to act for the prosecution. However, in such a case, he acts, at all times, under the directions and the instructions of the Law Office of the Republic.
The tasks and duties of the prosecution service are not confined to the presentation of criminal cases before the Courts. The prosecutors of the Law Office of the Republic work in close co-operation with the police and, at any stage during the investigation; police may be ask for provide legal advice and guidance in the context of the investigation. When the investigation process is completed, the police submit the file to the Law Office of the Republic. A prosecutor of the Law Office studies the file for ascertaining whether there is adequate evidence that could substantiate charges for any offence. The decision whether to prosecute or not is then made. Furthermore, the prosecutors of the Law Office handle all criminal appeals before the Supreme Court.
The Attorney General
The highest authority within the prosecution service is the Attorney General. He alone prescribes prosecution policy and supervises its implementation. It is important to appreciate that the executive has no authority in the matter. If, for example, the Ministry of Justice and Public Order would wish to promote a policy decision for first-time drug users not to be prosecuted, the most the Minister can do is to make a suggestion to this effect to the Attorney General. However, it is for the Attorney General to make the decision.
In the exercise of his tasks in prescribing prosecution policy, the Attorney General issues, from time to time, guidelines to the advocates of his office who are involved in the daily process of decision-making. These guidelines may relate to any matter concerning prosecution policy such as, the setting of criteria for determining which cases should be forwarded for trial by the Assize Court, the prescription of cases, which require specific handling, the description of special matters that need to be taken into account and so forth. Furthermore, it is usual practice for the Attorney General to set criteria and guidelines, which prosecutors should take into account when making the decision whether to prosecute, or not. The state of health of the person concerned, for example, is a factor that may justify a decision not to prosecute. Similarly, special considerations apply to cases where the wrongdoer is a person under age.
The importance of guidelines is clear if viewed in the light of the fact that the decision to prosecute is discretionary. Even where there is evidence, which could have substantiated charges, there is no legal obligation to prosecute. The Constitution expressly provides that the Attorney General exercises his powers ‘in the public interest’ and he himself is the sole judge of that. At any time, he may discontinue any criminal proceedings irrespective of the stage thereof, without having to give reasons for his decision. Similarly, a decision not to prosecute in any given case, is not subject to any pre-requisites, nor is the Attorney General legally accountable to any other authority in this respect.
Obviously, the constitutional legislator considered it necessary to grant the Attorney General very wide powers and virtually unfettered discretion in order to secure real and effectual independence for the office. However, the Attorney General does not operate in an arbitrary manner. However, under no legal obligation to do so, the Attorney General appears before Parliamentary Committees whenever invited and answers questions about serious matters of public interest dealt with by his office.
Furthermore, it is quite usual for the Attorney General to issue written statements informing the public of his decisions on major matters of public interest and explaining the rationale thereof.
Right to institute criminal proceedings
The Office of the Attorney General has a monopoly in the prosecution of offences triable by the Assize Court, that is, offences punishable with imprisonment exceeding five years. As expressly provided by sect. 107 Code of Criminal Procedure (hereafter CCP), only the Attorney General can file a charge before the Assize Court. Regarding offences, which are triable summarily, case law has recognised the right of any person who is the victim of a criminal offence, to institute private criminal proceedings against the wrongdoer. However, by no means is this right unlimited. In some cases prescribed by law, prior approval by the Attorney General is necessary; and, in any event, the Attorney General may, at any stage, take over or discontinue any private criminal proceedings.
Settlement
Settlement of criminal cases out of court is a practice unknown to the criminal justice system of Cyprus. Nor is pleabargaining institutionalised in any way similar to practices adopted in some other countries. However, given the extent of the Attorney General’s discretionary powers, there are cases where there is some sort of settlement. For example, if the prosecution charges an accused person with a number of burglaries and he admits most of them, the prosecution would, most probably, discontinue proceedings in relation to those not admitted.
