The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
Introduction
The basic change in the structure, position and tasks of public bodies took place in 1993, in connection with the split of Czechoslovakia. The public prosecution service is established in the Constitution. Sect. 80 Constitution stipulates that public prosecution represents the state in criminal proceedings and performs other tasks as provided by the law. The public prosecuor’s office is dealt with in the Constitution in the chapter about the executive power. The Constitution establishes personnel, organisational and material dependence of the public prosecution on the Ministry of Justice. This direct dependence is not established in criminal proceedings (for example as subordination) but effects through indirect dependence cannot be excluded (appointment of prosecutors, budget of prosecution offices and so forth).
The public prosecutor’s competence lies in criminal proceedings in the first place, but also in civil, commercial and administrative procedures, only when provided by a special law.
The status and competence of the public prosecution service are regulated by the Public Prosecution Act (No. 283/1993 Coll). The most extensive amendments were made in 2002 (Act No. 14/2002 Coll.).
The system of public prosecution consists of:
- the Supreme public prosecutor’s office (Brno)
- the High public prosecutor’s offices (Prague and Olomouc)
- the regional public prosecutor’s offices (8)
- the district public prosecutor’s offices (89)
The public prosecutor’s offices and the districts correspond to the offices and districts of the courts.
The Supreme public prosecutor’s office is led by the Supreme public prosecutor. Its sphere competence generally corresponds to the competence of the Supreme Court. The Supreme public prosecutor is superior to High public prosecutors.
The Supreme public prosecutor is appointed by the Government on the proposal of the Minister of Justice. The Government may remove him from office on the proposal of the Minister of Justice, even without giving a reason. The two Deputy Supreme public prosecutors are appointed and removed by the Minister of Justice, on the proposal of the Supreme public prosecutor.
The High public prosecutor’s office is led by the High public prosecutor. His sphere of competence corresponds to the competence of the High Courts. The Offices supervise the work of the regional offices within their respective districts.
The High public prosecutors are appointed and removed by the Minister of Justice, on the proposal of the Supreme public prosecutor.
The regional public prosecutor’s office is led by the regional public prosecutor. He represents the State in proceedings before Regional Courts as courts of first or second instance, if they decide on appellate reviews and complaints against decisions of District Courts. He supervises the work of district prosecutor’s offices within his districts. He is appointed and removed by the Minister of Justice, on the proposal of the High public prosecutor of his district
The district public prosecutor’s office is led by the (head) district public prosecutor. He represents public action in proceedings before District Courts as courts of first instance. He is appointed and removed by the Minister of Justice, on the proposal of the regional public prosecutor of his district.
The Minister of Justice can remove prosecutors from office if they commit a material breach of obligations arising out of managing public prosecutor’s function, but only on the proposal of the superior public prosecutor authorised to propose appointment, or on the proposal of the Supreme public prosecutor.
The office of public prosecutor commences with appointment. Public prosecutors are appointed by the Minister of Justice, on the proposal of the Supreme public prosecutor for an indefinite period of time.
The different levels of the public prosecution are relatively independent and free-standing. Only the immediate superior public prosecutor’s office is authorised to supervise the immediate subordinate public prosecutor’s office.
Pursuant to the Ministry of Justice Decree No. 23/1994 Coll., specialised departments of the High public prosecutor’s offices have been established with the aim of supervising the activities of the police in pre-trial proceedings concerning serious economic crime committed in banks and other financial institutions, or natural and legal persons, where the loss incurred exceeds 100 million Czech crowns, or if there was a loss of a state property share over 50 million Czech crowns, or if there was a damage to financial or economic interests of the European Union. This means that the High public prosecutor’s offices in Prague (for Bohemia) and Olomouc (for Moravia) exercise powers of a body of public prosecution, which would otherwise rest on the public prosecutor’s office of first instance. These departments are supervised by the Department of Serious Economic and Financial Crime, whilst the Supreme public prosecutor’s office has the powers of state prosecution of second instance.
Departments specialised in investigation and accelerated pre-trial proceedings concerning offences of members of the police and intelligence service officers have been established as well. One district public prosecutor’s office per region has been charged with investigation of offences of such persons, instead of the police. The reason is the effort to reach a higher efficiency of criminal procedure through the removal of a possible relationship police officer – investigator and police officer – accused.
Apart from these specialisations, each managing public prosecutor makes a list of specialists working for the respective public prosecutor’s office (for example, specialists in drug-related crime, organised crime, juvenile delinquency etc.). This list is submitted to the superior public prosecutor’s office and the Superior public Prosecutor’s Office. These lists are updated at least annually.
The Supreme public prosecutor’s office deals with extraordinary appeals, revision of cases before the Supreme Court, and cooperates in the publication of selected decisions of that Court. They participate in decision making of the Supreme Court on extensions of custody for more than two years.
The Supreme public prosecutor’s office also works as a central judicial authority in international judicial cooperation in criminal cases in pre-trial proceedings.
In criminal proceedings, all decisions of subordinate public prosecutor’s offices to close an investigation (except for the indictment) are submitted to the Supreme public prosecutor’s office for assessment once they come into force. If such decisions are found to be unlawful, the Supreme public prosecutor may annul them within the statutory period (three months) and order the respective public prosecutor’s office to continue the criminal prosecution (sect. 174a CCP).
The Supreme public prosecutor is authorised to give instructions of general character to unify and streamline the work of all public prosecutor’s offices and public prosecutors. However, this applies to legal issues, usually of a procedural nature, rather than to specific criminal cases (sect. 12 par. 1 law no. 283/1993 Coll. as amended).
The immediate superior public prosecutor’s office is authorised to supervise the work of immediate subordinate public prosecutor’s offices within its own region (district, department). They deal with cases under their competence and issue written instructions on how to proceed. They can also issue more general instructions. The immediate subordinate public prosecutor’s office is obliged to follow the written instructions of the immediate superior public prosecutor’s office, except for instructions contrary to law. Should the subordinate public prosecutor’s office refuse to follow the instruction of the superior public prosecutor’s office, they have to justify their position. If the superior public prosecutor’s office nevertheless insists on respecting the instruction, they take the case away from the subordinate public prosecutor’s office and deal with it themselves. In addition, the immediate superior public prosecutor’s office can take over a case from a subordinate public prosecutor’s office if the latter fail to act or cause unreasonably delay in the proceedings.
The chief public prosecutor is authorised to supervise progress in cases of public prosecutors working for the respective public prosecutor’s office and can give them instructions on how to proceed in handling their cases. Public prosecutors are obliged to follow such instructions, except for those contrary to law. If a public prosecutor refuses to follow an instruction, he has to submit written reasons for the refusal of the instruction to the chief public prosecutor without delay. If the chief public prosecutor still insists his instructions be followed, he handles the case by himself.
Guidelines and instructions
The Supreme public prosecutor can issue instructions of general character in order to unify and streamline the work of public prosecutors. This applies to the consistent execution of the powers of public prosecution, to ensuring a uniform internal organisation of the public prosecution system as well as to guaranteeing a uniform system of administration (especially records). The instructions of a general character apply to a specific type of cases but not to a specific ongoing case, and are binding for all public prosecutors. When the Supreme public prosecutor determines so, they are binding for other officers of the public prosecutor’s office as well.
The instructions regulate different fields such as: supervision in pre-trial proceedings, international judicial cooperation, sanctions for offences committed of national, racial or other hateful motion, sanctions for drug-related crime, sanctions for offences committed in connection with floods, specialisa-tions of public prosecutors, regulation of appellate review proceedings in criminal cases, competence of public prosecution in other than criminal cases, proceeding of public prosecution in cases pursuant to the Juvenile Justice Act, supervision of respecting legal provisions in execution of custody and imprisonment, and others.
The Supreme public prosecutor can issue opinions in order to unify interpretations of laws and other legal provisions in exercising the powers of public prosecution. The opinions are recommendatory and deal with specific application problems faced by public prosecutor’s office in practice, both in criminal and non-criminal cases.
Monopoly on prosecution
Public prosecution is a body which acts for the public in criminal proceedings and fulfils other tasks as established by the CCP. Only a public prosecutor can submit an indictment and represent public action at the court trial. Criminal proceedings are governed by the principle of legality. This means the public prosecutor has a duty to prosecute all offences reported to him except in cases stipulated by the CCP. The law stipulates exceptions to the principle of legality in the cases of diversions, if laid down by an international treaty or another, similar, instrument.
Main duties and powers of the prosecution service
The Public Prosecution Act contains just a general regulation; details concerning the prosecution service in criminal procedures are laid down in the CCP. The main duty of the public prosecution is to supervise the pre-trial proceedings, and once the indictment has been submitted, to represent the public before the court. The public prosecution has the status of a party at the trial before the court.
Exceptions to the legality principle
Exceptions to the principle of legality can be divided into two groups:
1. Cases in which the public prosecutor cannot prosecute:
- exemption from authority of investigative, prosecuting and adjudicating bodies – exempt are persons possessing privileges and immunities pursuant to national or international law;
- inadmissibility of criminal prosecution;
- where approval of the injured party is necessary for criminal prosecution and such approval has not been given or has been revoked, and
- where stipulated by an international treaty.
2. Cases in which the public prosecutor may decide not to prosecute:
- if criminal prosecution is quite unreasonable with regard to another criminal prosecution or sentence, or the case has been decided by another body and such decision is sufficient;
- if the sentence, to which the criminal prosecution may lead, is fully pointless in comparison with the sentence imposed or expected to be imposed on the accused for another offence;
- if the offence of the accused has been decided on by another body, foreign court or agency and the decision can be considered as sufficient;
- if considering the importance of the protected interest affected by the offence, the mode of committing the offence, the consequences, circumstances of the offence, and the behaviour of the accused after committing the offence, it is obvious that the purpose of criminal proceedings has been achieved, and further criminal proceedings are unnecessary; and
- when a diversionary measure, such as conditional discontinuance of criminal prosecution and settlement, is applied.
Discontinuation of prosecution
Discontinuation of criminal prosecution is one of the ways of disposing of a case, for which criminal prosecution has been commenced. Only the public prosecutor may discontinue criminal prosecution in pre-trial proceedings. The discontinuation of criminal prosecution always concerns a concrete act, and not its possible legal qualification. Final discontinuation of criminal prosecution creates a plea of res judicata.
The public prosecutor discontinues criminal prosecution for the following reasons:
- if it is beyond doubt that the prosecuted act did not happen.
If further investigation cannot dispel the doubt as to whether the offence happened or not, the public prosecutor is obliged to submit an indictment, and only the court may release the defendant from charges after the evidence is presented at the trial;
- if the act is not a criminal offence and there is no reason to transfer the case.
The act is not a criminal offence if it does not accomplish all elements of any offence and does not reach the necessary degree of danger for the society. Further, the act is not an offence if committed in self-defence or extreme necessity. If the act does not accomplish the statutory elements of a crime, but could be considered as an administrative infraction or violation of discipline by the relevant agency, there is a reason for transferring the case to another agency. However, if a period after which it is not possible to prosecute has lapsed because of administrative infraction, the case cannot be transferred and criminal prosecution must be discontinued. Administrative infractions are not subject to trial after the lapse of one year since the crime was committed.
- if there is no evidence that the act has been committed by the accused.
Criminal prosecution is discontinued, when the results of investigation suggest that the prosecuted act took place and constitutes a crime, but it has not been proven that it was the accused who committed it. When the conclusion as to whether the accused is the offender or not depends on weighing of conflicting evidence, the public prosecutor has to submit an indictment. Conflicts between contradicting evidence can only be addressed before the court at trial.
- if criminal prosecution is inadmissible.
Reasons for inadmissibility of criminal prosecution are laid down in sect. 11 CCP. If the public prosecutor finds out that there are some grounds for inadmissibility of criminal prosecution, the criminal prosecution must be discontinued without delay. These grounds for inadmissibility are stated as follows:
- amnesty or pardon by the President;
- limitation of criminal prosecution;
- exemption of a person from authority of investigative, prosecuting and adjudicating bodies, or if criminal prosecution of the person is subject to consent and such consent has not been given;
- person is not criminally liable due to minority;
- person has died or has been declared dead;
- the same person was criminally prosecuted for the same act and prosecution resulted in a final judgment of the court, a final discontinuation of the case by the court or by other competent body, a final judgment of transfer of the case with a suspicion that the act was an administrative infraction, another administrative crime, or violation of discipline, and the judgment has not been cancelled;
- where approval of the injured is necessary for criminal prosecution and such approval has not been given or has been revoked, and
- where stipulated by a binding international treaty.
- the accused was criminally liable on grounds of insanity at the time of the act. Insanity must be sufficiently proven and must exist at the time of the act. However, if a person got into a state of insanity through the consummation or application of an addictive substance and then committed a crime, such act should be qualified as an offence of intoxication pursuant to sect. 201 CCP.
- where punish ability of the act has extinguished.
There is extinguishment of criminal liability in cases where the danger of the crime for society has extinguished, punish ability has extinguished due to effective repentance, or punish ability has extinguished during preparation and attempt to commit a crime.
There are some other circumstances, in which a public prosecutor can discontinue criminal prosecution. Optional reasons for the discontinuation of criminal prosecution are:
- if the sentence, to which the criminal prosecution may lead, is fully pointless in comparison with the sentence imposed or expected to be imposed on the accused for another offence;
- if the offence of the accused has been decided on in disciplinary proceedings by another body, foreign court or agency and the decision can be considered as sufficient;
- if considering the importance of the protected interest affected by the offence, the mode of committing the offence, consequences and circumstances of the offence, and behaviour of the accused after committing the offence, it is obvious that the purpose of criminal proceedings has been achieved.
Accountability for the prosecution policy
Pursuant to sect. 3 Public Prosecution Act, matters in the competence of the public prosecution service are handled by public prosecutors only. Other bodies, institutions, agencies or persons are not allowed to interfere with their activities, or substitute or represent them in the exercise of their tasks. The only person authorised to harmonise penal policy within the entire prosecution service is the supreme public prosecutor, who can issue binding instructions of a general character, and has the right to review all cases where proceedings were closed, or file extraordinary appeals with the Supreme Court (Sect. 12 Public Prosecution Act).
Settlement
The court can decide to approve settlement, and discontinue criminal prosecution, for a crime which carries a statutory prison sentence of less than five years. This can only take place with the free and full consent of the accused and the injured as well as the public prosecutor in pre-trial proceedings, provided the following conditions are met by the accused party:
- he declares he committed the prosecuted crime;
- he compensates the injured party for damage caused by the crime or takes measures necessary for compensation, or otherwise rectifies the harm caused by the crime,
- he credits the public prosecution account (at the trial before the court to the court account) with a sum intended for a specific beneficiary for community service purposes, and the sum is not obviously inadequate in view of the gravity of the crime.
The public prosecutor in pre-trial proceedings or the court can decide so, if they regard this manner of settlement as sufficient considering the nature and gravity of the committed crime, the degree of violation of public interest, the person of the accused and his personal and property situation.
Before the decision on approval of the settlement, the public prosecutor hears the accused and the injured in pre-trial proceedings, mainly to ensure that they fully agree with the approval of settlement. The accused must be heard to make sure he understands the content of the accusation, and is aware of the consequences of the approval of settlement. The examination of the accused has to include a declaration that he committed the prosecuted offence. Before the hearing starts, the accused and the injured must be warned of their rights and of the merit of the institute of settlement.
The public prosecutor issues a decision of settlement, and discontinues criminal prosecution. The decision of approval of settlement and the discontinuation of criminal prosecution takes the form of a resolution. The resolution must clearly describe the act to avoid confusion with another act, and also describe its legal qualification and the content of settlement. As regards identification of the beneficiary of a sum for community service purposes, the court is bound by the content of agreement between the accused and the injured. This sum must be intended for municipalities or other entities residing on the territory of the Republic, and finance science and research, culture, education, fire protection, support and protection of youth, protection of animals, social, health, environmental, humanitarian and charity purposes, religious purposes – for registered churches and religious associations, physical training and sports associations, or be a sums given to the state for financial support of victims of crime. From the sum intended for community service purposes, the accused must allocate at least 50% to the state for finan-cial support of victims of crime.
If settlement was not approved in pre-trial proceedings before the public prosecutor (or at the trial before the court), then although the accused declared that he had committed the prosecuted crime, it is not allowed to regard the declaration as evidence in further proceedings.
Conditional discontinuation of prosecution
Another possibility in terms of the so-called diversion from standard proceedings is conditional discontinuation of criminal prosecution. Like in a settlement, the main idea is settling minor offences of a straightforward factual and legal nature out of court.
Conditional discontinuation of criminal prosecution is possible in those criminal proceedings where the law determines the sentence of imprisonment within the upper limit of less than five years. Conditions for conditional discontinuance of criminal prosecution are accumulative: there must be
- consent of the accused;
- confession of the accused; and
- compensation by the accused for the loss (if any) caused by the offence, or an agreement of compensation with the injured party, or other measures to remedy the loss, and furthermore, the decision must be considered to be sufficient, given the person of the accused and his recent life and the circumstances of the case.
The public prosecutor decides on conditional discontinuation of criminal prosecution in pre-trial proceedings, but this is also possible at the trial before the court. The decision takes the form of a resolution. The decision of conditional discontinuation of criminal prosecution determines a probationary period of six months to two years. The decision imposes a duty to compensate the accused for the loss caused in the probationary period. In addition, reasonable restrictions and duties to lead a proper life can be imposed on the accused. After the lapse of the probationary period, the public prosecutor checks whether the accused has complied with the conditions. If the accused duly fulfilled all conditions, the public prosecutor certifies the accused made good. Once the certificate gains legal validity, discontinuation of public prosecution becomes effective by law, which creates a plea of res judicata - rei iudicatae.
If the public prosecutor finds that the accused has not fulfilled the conditions imposed, the prosecution will continue. Such decision can be made before the end of the probationary period.
The Relation between the Public Prosecutor and the Minister of Justice
Introduction
The basic change in the structure, position and tasks of public bodies took place in 1993, in connection with the split of Czechoslovakia. The public prosecution service is established in the Constitution. Sect. 80 Constitution stipulates that public prosecution represents the state in criminal proceedings and performs other tasks as provided by the law. The public prosecuor’s office is dealt with in the Constitution in the chapter about the executive power. The Constitution establishes personnel, organisational and material dependence of the public prosecution on the Ministry of Justice. This direct dependence is not established in criminal proceedings (for example as subordination) but effects through indirect dependence cannot be excluded (appointment of prosecutors, budget of prosecution offices and so forth).
The public prosecutor’s competence lies in criminal proceedings in the first place, but also in civil, commercial and administrative procedures, only when provided by a special law.
The status and competence of the public prosecution service are regulated by the Public Prosecution Act (No. 283/1993 Coll). The most extensive amendments were made in 2002 (Act No. 14/2002 Coll.).
The system of public prosecution consists of:
- the Supreme public prosecutor’s office (Brno)
- the High public prosecutor’s offices (Prague and Olomouc)
- the regional public prosecutor’s offices (8)
- the district public prosecutor’s offices (89)
The public prosecutor’s offices and the districts correspond to the offices and districts of the courts.
The Supreme public prosecutor’s office is led by the Supreme public prosecutor. Its sphere competence generally corresponds to the competence of the Supreme Court. The Supreme public prosecutor is superior to High public prosecutors.
The Supreme public prosecutor is appointed by the Government on the proposal of the Minister of Justice. The Government may remove him from office on the proposal of the Minister of Justice, even without giving a reason. The two Deputy Supreme public prosecutors are appointed and removed by the Minister of Justice, on the proposal of the Supreme public prosecutor.
The High public prosecutor’s office is led by the High public prosecutor. His sphere of competence corresponds to the competence of the High Courts. The Offices supervise the work of the regional offices within their respective districts.
The High public prosecutors are appointed and removed by the Minister of Justice, on the proposal of the Supreme public prosecutor.
The regional public prosecutor’s office is led by the regional public prosecutor. He represents the State in proceedings before Regional Courts as courts of first or second instance, if they decide on appellate reviews and complaints against decisions of District Courts. He supervises the work of district prosecutor’s offices within his districts. He is appointed and removed by the Minister of Justice, on the proposal of the High public prosecutor of his district
The district public prosecutor’s office is led by the (head) district public prosecutor. He represents public action in proceedings before District Courts as courts of first instance. He is appointed and removed by the Minister of Justice, on the proposal of the regional public prosecutor of his district.
The Minister of Justice can remove prosecutors from office if they commit a material breach of obligations arising out of managing public prosecutor’s function, but only on the proposal of the superior public prosecutor authorised to propose appointment, or on the proposal of the Supreme public prosecutor.
The office of public prosecutor commences with appointment. Public prosecutors are appointed by the Minister of Justice, on the proposal of the Supreme public prosecutor for an indefinite period of time.
The different levels of the public prosecution are relatively independent and free-standing. Only the immediate superior public prosecutor’s office is authorised to supervise the immediate subordinate public prosecutor’s office.
Pursuant to the Ministry of Justice Decree No. 23/1994 Coll., specialised departments of the High public prosecutor’s offices have been established with the aim of supervising the activities of the police in pre-trial proceedings concerning serious economic crime committed in banks and other financial institutions, or natural and legal persons, where the loss incurred exceeds 100 million Czech crowns, or if there was a loss of a state property share over 50 million Czech crowns, or if there was a damage to financial or economic interests of the European Union. This means that the High public prosecutor’s offices in Prague (for Bohemia) and Olomouc (for Moravia) exercise powers of a body of public prosecution, which would otherwise rest on the public prosecutor’s office of first instance. These departments are supervised by the Department of Serious Economic and Financial Crime, whilst the Supreme public prosecutor’s office has the powers of state prosecution of second instance.
Departments specialised in investigation and accelerated pre-trial proceedings concerning offences of members of the police and intelligence service officers have been established as well. One district public prosecutor’s office per region has been charged with investigation of offences of such persons, instead of the police. The reason is the effort to reach a higher efficiency of criminal procedure through the removal of a possible relationship police officer – investigator and police officer – accused.
Apart from these specialisations, each managing public prosecutor makes a list of specialists working for the respective public prosecutor’s office (for example, specialists in drug-related crime, organised crime, juvenile delinquency etc.). This list is submitted to the superior public prosecutor’s office and the Superior public Prosecutor’s Office. These lists are updated at least annually.
The Supreme public prosecutor’s office deals with extraordinary appeals, revision of cases before the Supreme Court, and cooperates in the publication of selected decisions of that Court. They participate in decision making of the Supreme Court on extensions of custody for more than two years.
The Supreme public prosecutor’s office also works as a central judicial authority in international judicial cooperation in criminal cases in pre-trial proceedings.
In criminal proceedings, all decisions of subordinate public prosecutor’s offices to close an investigation (except for the indictment) are submitted to the Supreme public prosecutor’s office for assessment once they come into force. If such decisions are found to be unlawful, the Supreme public prosecutor may annul them within the statutory period (three months) and order the respective public prosecutor’s office to continue the criminal prosecution (sect. 174a CCP).
The Supreme public prosecutor is authorised to give instructions of general character to unify and streamline the work of all public prosecutor’s offices and public prosecutors. However, this applies to legal issues, usually of a procedural nature, rather than to specific criminal cases (sect. 12 par. 1 law no. 283/1993 Coll. as amended).
The immediate superior public prosecutor’s office is authorised to supervise the work of immediate subordinate public prosecutor’s offices within its own region (district, department). They deal with cases under their competence and issue written instructions on how to proceed. They can also issue more general instructions. The immediate subordinate public prosecutor’s office is obliged to follow the written instructions of the immediate superior public prosecutor’s office, except for instructions contrary to law. Should the subordinate public prosecutor’s office refuse to follow the instruction of the superior public prosecutor’s office, they have to justify their position. If the superior public prosecutor’s office nevertheless insists on respecting the instruction, they take the case away from the subordinate public prosecutor’s office and deal with it themselves. In addition, the immediate superior public prosecutor’s office can take over a case from a subordinate public prosecutor’s office if the latter fail to act or cause unreasonably delay in the proceedings.
The chief public prosecutor is authorised to supervise progress in cases of public prosecutors working for the respective public prosecutor’s office and can give them instructions on how to proceed in handling their cases. Public prosecutors are obliged to follow such instructions, except for those contrary to law. If a public prosecutor refuses to follow an instruction, he has to submit written reasons for the refusal of the instruction to the chief public prosecutor without delay. If the chief public prosecutor still insists his instructions be followed, he handles the case by himself.
Guidelines and instructions
The Supreme public prosecutor can issue instructions of general character in order to unify and streamline the work of public prosecutors. This applies to the consistent execution of the powers of public prosecution, to ensuring a uniform internal organisation of the public prosecution system as well as to guaranteeing a uniform system of administration (especially records). The instructions of a general character apply to a specific type of cases but not to a specific ongoing case, and are binding for all public prosecutors. When the Supreme public prosecutor determines so, they are binding for other officers of the public prosecutor’s office as well.
The instructions regulate different fields such as: supervision in pre-trial proceedings, international judicial cooperation, sanctions for offences committed of national, racial or other hateful motion, sanctions for drug-related crime, sanctions for offences committed in connection with floods, specialisa-tions of public prosecutors, regulation of appellate review proceedings in criminal cases, competence of public prosecution in other than criminal cases, proceeding of public prosecution in cases pursuant to the Juvenile Justice Act, supervision of respecting legal provisions in execution of custody and imprisonment, and others.
The Supreme public prosecutor can issue opinions in order to unify interpretations of laws and other legal provisions in exercising the powers of public prosecution. The opinions are recommendatory and deal with specific application problems faced by public prosecutor’s office in practice, both in criminal and non-criminal cases.
Monopoly on prosecution
Public prosecution is a body which acts for the public in criminal proceedings and fulfils other tasks as established by the CCP. Only a public prosecutor can submit an indictment and represent public action at the court trial. Criminal proceedings are governed by the principle of legality. This means the public prosecutor has a duty to prosecute all offences reported to him except in cases stipulated by the CCP. The law stipulates exceptions to the principle of legality in the cases of diversions, if laid down by an international treaty or another, similar, instrument.
Main duties and powers of the prosecution service
The Public Prosecution Act contains just a general regulation; details concerning the prosecution service in criminal procedures are laid down in the CCP. The main duty of the public prosecution is to supervise the pre-trial proceedings, and once the indictment has been submitted, to represent the public before the court. The public prosecution has the status of a party at the trial before the court.
Exceptions to the legality principle
Exceptions to the principle of legality can be divided into two groups:
1. Cases in which the public prosecutor cannot prosecute:
- exemption from authority of investigative, prosecuting and adjudicating bodies – exempt are persons possessing privileges and immunities pursuant to national or international law;
- inadmissibility of criminal prosecution;
- where approval of the injured party is necessary for criminal prosecution and such approval has not been given or has been revoked, and
- where stipulated by an international treaty.
2. Cases in which the public prosecutor may decide not to prosecute:
- if criminal prosecution is quite unreasonable with regard to another criminal prosecution or sentence, or the case has been decided by another body and such decision is sufficient;
- if the sentence, to which the criminal prosecution may lead, is fully pointless in comparison with the sentence imposed or expected to be imposed on the accused for another offence;
- if the offence of the accused has been decided on by another body, foreign court or agency and the decision can be considered as sufficient;
- if considering the importance of the protected interest affected by the offence, the mode of committing the offence, the consequences, circumstances of the offence, and the behaviour of the accused after committing the offence, it is obvious that the purpose of criminal proceedings has been achieved, and further criminal proceedings are unnecessary; and
- when a diversionary measure, such as conditional discontinuance of criminal prosecution and settlement, is applied.
Discontinuation of prosecution
Discontinuation of criminal prosecution is one of the ways of disposing of a case, for which criminal prosecution has been commenced. Only the public prosecutor may discontinue criminal prosecution in pre-trial proceedings. The discontinuation of criminal prosecution always concerns a concrete act, and not its possible legal qualification. Final discontinuation of criminal prosecution creates a plea of res judicata.
The public prosecutor discontinues criminal prosecution for the following reasons:
- if it is beyond doubt that the prosecuted act did not happen.
If further investigation cannot dispel the doubt as to whether the offence happened or not, the public prosecutor is obliged to submit an indictment, and only the court may release the defendant from charges after the evidence is presented at the trial;
- if the act is not a criminal offence and there is no reason to transfer the case.
The act is not a criminal offence if it does not accomplish all elements of any offence and does not reach the necessary degree of danger for the society. Further, the act is not an offence if committed in self-defence or extreme necessity. If the act does not accomplish the statutory elements of a crime, but could be considered as an administrative infraction or violation of discipline by the relevant agency, there is a reason for transferring the case to another agency. However, if a period after which it is not possible to prosecute has lapsed because of administrative infraction, the case cannot be transferred and criminal prosecution must be discontinued. Administrative infractions are not subject to trial after the lapse of one year since the crime was committed.
- if there is no evidence that the act has been committed by the accused.
Criminal prosecution is discontinued, when the results of investigation suggest that the prosecuted act took place and constitutes a crime, but it has not been proven that it was the accused who committed it. When the conclusion as to whether the accused is the offender or not depends on weighing of conflicting evidence, the public prosecutor has to submit an indictment. Conflicts between contradicting evidence can only be addressed before the court at trial.
- if criminal prosecution is inadmissible.
Reasons for inadmissibility of criminal prosecution are laid down in sect. 11 CCP. If the public prosecutor finds out that there are some grounds for inadmissibility of criminal prosecution, the criminal prosecution must be discontinued without delay. These grounds for inadmissibility are stated as follows:
- amnesty or pardon by the President;
- limitation of criminal prosecution;
- exemption of a person from authority of investigative, prosecuting and adjudicating bodies, or if criminal prosecution of the person is subject to consent and such consent has not been given;
- person is not criminally liable due to minority;
- person has died or has been declared dead;
- the same person was criminally prosecuted for the same act and prosecution resulted in a final judgment of the court, a final discontinuation of the case by the court or by other competent body, a final judgment of transfer of the case with a suspicion that the act was an administrative infraction, another administrative crime, or violation of discipline, and the judgment has not been cancelled;
- where approval of the injured is necessary for criminal prosecution and such approval has not been given or has been revoked, and
- where stipulated by a binding international treaty.
- the accused was criminally liable on grounds of insanity at the time of the act. Insanity must be sufficiently proven and must exist at the time of the act. However, if a person got into a state of insanity through the consummation or application of an addictive substance and then committed a crime, such act should be qualified as an offence of intoxication pursuant to sect. 201 CCP.
- where punish ability of the act has extinguished.
There is extinguishment of criminal liability in cases where the danger of the crime for society has extinguished, punish ability has extinguished due to effective repentance, or punish ability has extinguished during preparation and attempt to commit a crime.
There are some other circumstances, in which a public prosecutor can discontinue criminal prosecution. Optional reasons for the discontinuation of criminal prosecution are:
- if the sentence, to which the criminal prosecution may lead, is fully pointless in comparison with the sentence imposed or expected to be imposed on the accused for another offence;
- if the offence of the accused has been decided on in disciplinary proceedings by another body, foreign court or agency and the decision can be considered as sufficient;
- if considering the importance of the protected interest affected by the offence, the mode of committing the offence, consequences and circumstances of the offence, and behaviour of the accused after committing the offence, it is obvious that the purpose of criminal proceedings has been achieved.
Accountability for the prosecution policy
Pursuant to sect. 3 Public Prosecution Act, matters in the competence of the public prosecution service are handled by public prosecutors only. Other bodies, institutions, agencies or persons are not allowed to interfere with their activities, or substitute or represent them in the exercise of their tasks. The only person authorised to harmonise penal policy within the entire prosecution service is the supreme public prosecutor, who can issue binding instructions of a general character, and has the right to review all cases where proceedings were closed, or file extraordinary appeals with the Supreme Court (Sect. 12 Public Prosecution Act).
Settlement
The court can decide to approve settlement, and discontinue criminal prosecution, for a crime which carries a statutory prison sentence of less than five years. This can only take place with the free and full consent of the accused and the injured as well as the public prosecutor in pre-trial proceedings, provided the following conditions are met by the accused party:
- he declares he committed the prosecuted crime;
- he compensates the injured party for damage caused by the crime or takes measures necessary for compensation, or otherwise rectifies the harm caused by the crime,
- he credits the public prosecution account (at the trial before the court to the court account) with a sum intended for a specific beneficiary for community service purposes, and the sum is not obviously inadequate in view of the gravity of the crime.
The public prosecutor in pre-trial proceedings or the court can decide so, if they regard this manner of settlement as sufficient considering the nature and gravity of the committed crime, the degree of violation of public interest, the person of the accused and his personal and property situation.
Before the decision on approval of the settlement, the public prosecutor hears the accused and the injured in pre-trial proceedings, mainly to ensure that they fully agree with the approval of settlement. The accused must be heard to make sure he understands the content of the accusation, and is aware of the consequences of the approval of settlement. The examination of the accused has to include a declaration that he committed the prosecuted offence. Before the hearing starts, the accused and the injured must be warned of their rights and of the merit of the institute of settlement.
The public prosecutor issues a decision of settlement, and discontinues criminal prosecution. The decision of approval of settlement and the discontinuation of criminal prosecution takes the form of a resolution. The resolution must clearly describe the act to avoid confusion with another act, and also describe its legal qualification and the content of settlement. As regards identification of the beneficiary of a sum for community service purposes, the court is bound by the content of agreement between the accused and the injured. This sum must be intended for municipalities or other entities residing on the territory of the Republic, and finance science and research, culture, education, fire protection, support and protection of youth, protection of animals, social, health, environmental, humanitarian and charity purposes, religious purposes – for registered churches and religious associations, physical training and sports associations, or be a sums given to the state for financial support of victims of crime. From the sum intended for community service purposes, the accused must allocate at least 50% to the state for finan-cial support of victims of crime.
If settlement was not approved in pre-trial proceedings before the public prosecutor (or at the trial before the court), then although the accused declared that he had committed the prosecuted crime, it is not allowed to regard the declaration as evidence in further proceedings.
Conditional discontinuation of prosecution
Another possibility in terms of the so-called diversion from standard proceedings is conditional discontinuation of criminal prosecution. Like in a settlement, the main idea is settling minor offences of a straightforward factual and legal nature out of court.
Conditional discontinuation of criminal prosecution is possible in those criminal proceedings where the law determines the sentence of imprisonment within the upper limit of less than five years. Conditions for conditional discontinuance of criminal prosecution are accumulative: there must be
- consent of the accused;
- confession of the accused; and
- compensation by the accused for the loss (if any) caused by the offence, or an agreement of compensation with the injured party, or other measures to remedy the loss, and furthermore, the decision must be considered to be sufficient, given the person of the accused and his recent life and the circumstances of the case.
The public prosecutor decides on conditional discontinuation of criminal prosecution in pre-trial proceedings, but this is also possible at the trial before the court. The decision takes the form of a resolution. The decision of conditional discontinuation of criminal prosecution determines a probationary period of six months to two years. The decision imposes a duty to compensate the accused for the loss caused in the probationary period. In addition, reasonable restrictions and duties to lead a proper life can be imposed on the accused. After the lapse of the probationary period, the public prosecutor checks whether the accused has complied with the conditions. If the accused duly fulfilled all conditions, the public prosecutor certifies the accused made good. Once the certificate gains legal validity, discontinuation of public prosecution becomes effective by law, which creates a plea of res judicata - rei iudicatae.
If the public prosecutor finds that the accused has not fulfilled the conditions imposed, the prosecution will continue. Such decision can be made before the end of the probationary period.
