The Role of the Public Prosecution in Court
Chapter III
The Role of the Public Prosecution in Court
Introduction
Sect. 80 Constitution stipulates that the public prosecutor’s office represents public prosecution in criminal proceedings.
The public prosecutor represents the public in court (sect. 2 CCP). The public prosecutor can file a motion for punishment in cases with accelerated pre-trial proceedings (minor offences with simple evidence), which is a simplified version of indictment.
Dominus litis
From January 1, 2002, when an amendment to the CCP (No. 265/2001 Coll.) became effective, the position of the public prosecutor in proceedings has been strengthened considerably, as the public prosecutor in pre-trial proceedings gained the status of a dominus litis. In this amendment, many legal acts and all decisions in pre-trial proceedings were transferred from police to public prosecutor. The public prosecutor has a status of a party in court. Pursuant to sect. 2 CCP, criminal prosecution before the court is subject to indictment or motion for punishment filed by the public prosecutor. The judge hearing the case at the court is not bound by the public prosecutor’s legal opinion on the legal qualification of the act, but is bound by the description of the act in the indictment (sect. 220 CCP).
The charge
When it is beyond doubt that a crime was committed, and the offender is known, the police or public prosecutor decide to commence criminal prosecution of that person as an accused. Criminal prosecution of the accused starts by an indictment that must be delivered in the hands of the accused. Only after the indictment has been delivered to the accused, it is possible to perform acts of criminal proceedings that involve or could involve the presence of the accused or his counsel. The indictment must contain identification of the accused, description of the act, which has to be defined clearly to avoid confusion, a legal qualification of the crime seen in that act, and justification and instruction of remedial measure.
The court may only decide on the act charged. But the court is not bound by the legal qualification of the act in the indictment or motion for punishment. If the court reaches a different legal qualification of the act than that of the public prosecutor, the following procedure shall apply:
- if the court, in preliminary hearing of indictment, i.e. before the trial order, arrives at conclusion that the act being the subject-matter of indictment should be qualified according to another provision of penal law than as qualified in the indictment, the case shall be sent back to the public prosecutor for additional investigation, unless it is necessary to clarify the case due to divergent determination of law. However, if the case does not need further clarification, the court shall warn those persons, to whom a copy of the indictment is served, for the possibility of divergent determination of law;
- based on the results of the trial, the court may diverge in legal qualification of the act from that of the indictment either in favour, or to the detriment of the defendant. In any case, the deviation of legal qualification must be within the limits of identification of the act. A harsher qualification of the act than that in the indictment always carries more severe consequences for the defendant. That is why, in order to respect the right to counsel, the court may adjudge the defendant guilty according to a harsher provision of the penal law, only if the defendant had been warned of the possibility of such harsher qualification.
- in appellate proceedings the court must not ascertain the defendant guilty of a more serious crime than the court of first instance could have ascertained the defendant guilty in the challenged judgment.
During the court session, including the closing speech, the public prosecutor may propose the court to change the legal qualification of the act as stated in the indictment.
Examination
Cross-examination is inadmissible evidence according to the CCP. Before examination, a defendant must be duly warned of his rights and must not be forced to give testimony in any way. The court must give the defendant the possibility to express his opinion on the indictment, in particular to describe the facts being the subject of his charge, state circumstances mitigating or refuting the accusation, and offer relevant evidence, in an uninterrupted manner. Only then, questions may be asked to supplement the testimony and clarify ambiguities or discrepancies. The questions must be asked in a clear and understandable manner without simulation of deceptive and false circumstances, and must not suggest the proper answer. It is prohibited to ask captious and suggestive questions. Captious questions pretend a false, deceptive reality, or anticipate a reality unacknowledged by the defendant so far, thus tempting the defendant, without his noticing, to give the answer expected by the interrogator. Suggestive questions are those that present the interrogated with circumstances to be found in his testimony, thus suggesting the defendant a proper answer. Since captious and suggestive questions are odds with the law, this may lead to absolute ineffectiveness of evidence acquired through such examination, and its inapplicability in further proceedings.
Before examination of a witness, it is always necessary to identify the person, his relation to the defendant, and if necessary, to inform him about prohibition of examination or the possibility to protect a witness, and to inform him he must tell the whole truth and disclose everything. In addition, the witness must be warned of the importance of a testimony of a witness in terms of public interest, and of the penal consequences of a false testimony. An oath is not used.
At the beginning of examination, the witness has to be asked about his relation to the heard case and the parties, and if necessary, about other circumstances significant for ascertaining the reliability of the testimony. The witness must be given a chance to tell everything he knows about the case, as well as from where he got to know the circumstances he states, in an uninterrupted manner. The witness may be asked questions to supplement the testimony or remove inconsistencies, ambiguities or discrepancies. The witness must not be asked questions about circumstances already found in his testimony.
Examination of the accused and the witnesses
The trial is presided by the judge (single judge or presiding judge). The judge may charge a member of the bench with bringing specific evidence or performing a specific act, or may order the public prosecutor to do so. In principle, it is the judge who examines the defendant and the witness. The public prosecutor, the defendant, his counsel and authorised attorney, participants in the crime, the injured and their attorneys may ask interrogated persons questions with the consent of the judge, usually when the court has finished their questioning and the members of the bench, if there is a panel of judges, have no further questions.
The public prosecutor, the defendant and his counsel may request to be allowed to bring in evidence, interrogation of a witness or an expert in particular. The judge accords his consent especially, when the evidence is brought in on their motion or is provided and presented by them. The judge is not obliged to consent, if the interrogated person is the accused, a witness under 15 years of age, an ill or injured witness, or if presenting the evidence would be inadequate for another serious reason. If interrogation of the same witness or expert is proposed by both the public prosecutor and the defendant or counsel, and both parties ask for the interrogation, the judge decides which one shall conduct the interrogation, after both parties have given their statements. The judge may interrupt interrogation by some of the parties to the process only, if the interrogation is conducted against the law, pressure is exerted upon the interrogated by the interrogator, the interrogation is conducted in another inadequate way, or the judge or a member of the bench deems it necessary to ask the interrogated a question, which cannot be postponed until the end of the interrogation. The other party may ask the interrogated questions after the interrogation.
Closing speech
Following the bringing in of evidence, when there are no more motions for additional evidence, or if it was decided that there would be no additional evidence, the judge closes the evidence and gives the floor to the closing speeches.
The closing speeches take the following order of precedence: the public prosecutor, the injured, participant in the crime, and then the defence counsel or the defendant. If the injured or the participant in crime has a representative, the representative shall speak. If necessary, the judge determines the order, in which the authorised persons shall speak after the public prosecutor’s closing speech. The defence counsel or the defendant always is the last to speak. If the public prosecutor speaks again after the defence counsel or defendant’s speech, the counsel or defendant has the right to reply. The judge may interrupt a closing speech only if it evidently steers away from the frame of the case heard.
In his closing speech, the public prosecutor sums up the evidence and identifies the facts deemed to be proved based on the specific evidence, giving his opinion on the evidence that testifies in favour, and to the detriment, of the defendant. The public prosecutor objectively assesses the degree of danger the crime presents for society, the personality of the offender, motives, and factual and other circumstances of the case important for the motion for the court’s decision on guilt, punishment, protective treatment measures and claims of the injured persons for compensation.
In the closing motion before the decision on guilt, the public prosecutor justifies the legal qualification in view of the evidence. If the public prosecutor finds that the act of the accused should be considered against another legal provision than that stated in the indictment, he shall justify the motion for such change in detail. If the public prosecutor intends to propose using a harsher legal qualification in the closing speech, he proposes the court to warn the defendant of a harsher legal qualification during the trial before the award of judgment and to give a timelimit for the preparation of defence.
In the closing motion for the statement specifying punishment, the public prosecutor proposes the type and severity of sentence – for example the maximum or minimum sentence, sentence in the middle or in the upper fourth of the range. If the public prosecutor proposes imposing imprisonment in terms that admit conditional suspension of serving the sentence of imprisonment, he proposes suspending the sentence of imprisonment for a reasonable probationary period, or proposes imposing reasonable restrictions on the defendant. If the public prosecutor proposes imposing an unconditional sentence of imprisonment, he proposes the type of prison along with the justification of the proposal.
If necessary, the public prosecutor proposes the court a decision on protective treatment measures. The public prosecutor also gives his opinion on the proposal of the injured for compensation.
The Role of the Public Prosecution in Court
Introduction
Sect. 80 Constitution stipulates that the public prosecutor’s office represents public prosecution in criminal proceedings.
The public prosecutor represents the public in court (sect. 2 CCP). The public prosecutor can file a motion for punishment in cases with accelerated pre-trial proceedings (minor offences with simple evidence), which is a simplified version of indictment.
Dominus litis
From January 1, 2002, when an amendment to the CCP (No. 265/2001 Coll.) became effective, the position of the public prosecutor in proceedings has been strengthened considerably, as the public prosecutor in pre-trial proceedings gained the status of a dominus litis. In this amendment, many legal acts and all decisions in pre-trial proceedings were transferred from police to public prosecutor. The public prosecutor has a status of a party in court. Pursuant to sect. 2 CCP, criminal prosecution before the court is subject to indictment or motion for punishment filed by the public prosecutor. The judge hearing the case at the court is not bound by the public prosecutor’s legal opinion on the legal qualification of the act, but is bound by the description of the act in the indictment (sect. 220 CCP).
The charge
When it is beyond doubt that a crime was committed, and the offender is known, the police or public prosecutor decide to commence criminal prosecution of that person as an accused. Criminal prosecution of the accused starts by an indictment that must be delivered in the hands of the accused. Only after the indictment has been delivered to the accused, it is possible to perform acts of criminal proceedings that involve or could involve the presence of the accused or his counsel. The indictment must contain identification of the accused, description of the act, which has to be defined clearly to avoid confusion, a legal qualification of the crime seen in that act, and justification and instruction of remedial measure.
The court may only decide on the act charged. But the court is not bound by the legal qualification of the act in the indictment or motion for punishment. If the court reaches a different legal qualification of the act than that of the public prosecutor, the following procedure shall apply:
- if the court, in preliminary hearing of indictment, i.e. before the trial order, arrives at conclusion that the act being the subject-matter of indictment should be qualified according to another provision of penal law than as qualified in the indictment, the case shall be sent back to the public prosecutor for additional investigation, unless it is necessary to clarify the case due to divergent determination of law. However, if the case does not need further clarification, the court shall warn those persons, to whom a copy of the indictment is served, for the possibility of divergent determination of law;
- based on the results of the trial, the court may diverge in legal qualification of the act from that of the indictment either in favour, or to the detriment of the defendant. In any case, the deviation of legal qualification must be within the limits of identification of the act. A harsher qualification of the act than that in the indictment always carries more severe consequences for the defendant. That is why, in order to respect the right to counsel, the court may adjudge the defendant guilty according to a harsher provision of the penal law, only if the defendant had been warned of the possibility of such harsher qualification.
- in appellate proceedings the court must not ascertain the defendant guilty of a more serious crime than the court of first instance could have ascertained the defendant guilty in the challenged judgment.
During the court session, including the closing speech, the public prosecutor may propose the court to change the legal qualification of the act as stated in the indictment.
Examination
Cross-examination is inadmissible evidence according to the CCP. Before examination, a defendant must be duly warned of his rights and must not be forced to give testimony in any way. The court must give the defendant the possibility to express his opinion on the indictment, in particular to describe the facts being the subject of his charge, state circumstances mitigating or refuting the accusation, and offer relevant evidence, in an uninterrupted manner. Only then, questions may be asked to supplement the testimony and clarify ambiguities or discrepancies. The questions must be asked in a clear and understandable manner without simulation of deceptive and false circumstances, and must not suggest the proper answer. It is prohibited to ask captious and suggestive questions. Captious questions pretend a false, deceptive reality, or anticipate a reality unacknowledged by the defendant so far, thus tempting the defendant, without his noticing, to give the answer expected by the interrogator. Suggestive questions are those that present the interrogated with circumstances to be found in his testimony, thus suggesting the defendant a proper answer. Since captious and suggestive questions are odds with the law, this may lead to absolute ineffectiveness of evidence acquired through such examination, and its inapplicability in further proceedings.
Before examination of a witness, it is always necessary to identify the person, his relation to the defendant, and if necessary, to inform him about prohibition of examination or the possibility to protect a witness, and to inform him he must tell the whole truth and disclose everything. In addition, the witness must be warned of the importance of a testimony of a witness in terms of public interest, and of the penal consequences of a false testimony. An oath is not used.
At the beginning of examination, the witness has to be asked about his relation to the heard case and the parties, and if necessary, about other circumstances significant for ascertaining the reliability of the testimony. The witness must be given a chance to tell everything he knows about the case, as well as from where he got to know the circumstances he states, in an uninterrupted manner. The witness may be asked questions to supplement the testimony or remove inconsistencies, ambiguities or discrepancies. The witness must not be asked questions about circumstances already found in his testimony.
Examination of the accused and the witnesses
The trial is presided by the judge (single judge or presiding judge). The judge may charge a member of the bench with bringing specific evidence or performing a specific act, or may order the public prosecutor to do so. In principle, it is the judge who examines the defendant and the witness. The public prosecutor, the defendant, his counsel and authorised attorney, participants in the crime, the injured and their attorneys may ask interrogated persons questions with the consent of the judge, usually when the court has finished their questioning and the members of the bench, if there is a panel of judges, have no further questions.
The public prosecutor, the defendant and his counsel may request to be allowed to bring in evidence, interrogation of a witness or an expert in particular. The judge accords his consent especially, when the evidence is brought in on their motion or is provided and presented by them. The judge is not obliged to consent, if the interrogated person is the accused, a witness under 15 years of age, an ill or injured witness, or if presenting the evidence would be inadequate for another serious reason. If interrogation of the same witness or expert is proposed by both the public prosecutor and the defendant or counsel, and both parties ask for the interrogation, the judge decides which one shall conduct the interrogation, after both parties have given their statements. The judge may interrupt interrogation by some of the parties to the process only, if the interrogation is conducted against the law, pressure is exerted upon the interrogated by the interrogator, the interrogation is conducted in another inadequate way, or the judge or a member of the bench deems it necessary to ask the interrogated a question, which cannot be postponed until the end of the interrogation. The other party may ask the interrogated questions after the interrogation.
Closing speech
Following the bringing in of evidence, when there are no more motions for additional evidence, or if it was decided that there would be no additional evidence, the judge closes the evidence and gives the floor to the closing speeches.
The closing speeches take the following order of precedence: the public prosecutor, the injured, participant in the crime, and then the defence counsel or the defendant. If the injured or the participant in crime has a representative, the representative shall speak. If necessary, the judge determines the order, in which the authorised persons shall speak after the public prosecutor’s closing speech. The defence counsel or the defendant always is the last to speak. If the public prosecutor speaks again after the defence counsel or defendant’s speech, the counsel or defendant has the right to reply. The judge may interrupt a closing speech only if it evidently steers away from the frame of the case heard.
In his closing speech, the public prosecutor sums up the evidence and identifies the facts deemed to be proved based on the specific evidence, giving his opinion on the evidence that testifies in favour, and to the detriment, of the defendant. The public prosecutor objectively assesses the degree of danger the crime presents for society, the personality of the offender, motives, and factual and other circumstances of the case important for the motion for the court’s decision on guilt, punishment, protective treatment measures and claims of the injured persons for compensation.
In the closing motion before the decision on guilt, the public prosecutor justifies the legal qualification in view of the evidence. If the public prosecutor finds that the act of the accused should be considered against another legal provision than that stated in the indictment, he shall justify the motion for such change in detail. If the public prosecutor intends to propose using a harsher legal qualification in the closing speech, he proposes the court to warn the defendant of a harsher legal qualification during the trial before the award of judgment and to give a timelimit for the preparation of defence.
In the closing motion for the statement specifying punishment, the public prosecutor proposes the type and severity of sentence – for example the maximum or minimum sentence, sentence in the middle or in the upper fourth of the range. If the public prosecutor proposes imposing imprisonment in terms that admit conditional suspension of serving the sentence of imprisonment, he proposes suspending the sentence of imprisonment for a reasonable probationary period, or proposes imposing reasonable restrictions on the defendant. If the public prosecutor proposes imposing an unconditional sentence of imprisonment, he proposes the type of prison along with the justification of the proposal.
If necessary, the public prosecutor proposes the court a decision on protective treatment measures. The public prosecutor also gives his opinion on the proposal of the injured for compensation.
