The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
The court procedure has an accusatorial nature, as according to Sect. 14 subs. 1 of CCP the prosecution, the defense counsel and the court have different procedural tasks. Hence, the court is given a passive role, in principle, settling the dispute between the prosecution and the defense counsel.
In court procedure the aim of the prosecutor is to achieve a guilty verdict and he or she has to use all procedural possibilities to reach that goal. The prosecutor is the dominus litis, as the CCP does not recognise private prosecution. Besides that the court is bound by the prosecutor, because when the prosecutor abstains from prosecuting, the court has to terminate the procedure and make an acquittal (Sect. 14 subs. 2 and Sect. 301 of CCP).
If there is sufficient evidence to prosecute the suspect of a certain crime the prosecutor has to present an appropriate charge and has no option to opt for a less severe charge.
Pursuant to Sect. 268 subs. 1 of CCP the court shall as a rule hear a criminal matter with regard to the accused only on the basis the statement of charges (the requirements are provided in Sect. 154 of CCP).
However, in a court hearing, the prosecutor may amend or supplement the charges until the completion of examination by court. If the charges are supplemented or substantially amended, the prosecutor shall prepare a new statement of charges. This document need not be prepared if the prosecutor amends the charges, resulting in mitigation of the situation of the accused (Sect. 268 subs. 2 of CCP).
Besides that, the prosecutor may amend legal assessment of a crime during the dispute on the basis of the same facts relating to the criminal offence, if this mitigates the situation of the accused (Sect. 268 subs. 3 of CCP). The same right is given to the court while making a judgment on the same clause (Sect. 268 subs. 4 of CCP). This is an exception as in general the court may not change or modify the charge.
One of the clear illustrations of the adversarial court procedure is cross-examination, the regulation of which is given in Sect. 288 of CCP. The rules are the following:
In cross-examination, the party to the court proceedings at whose request the witness has been summoned to the court is the first to examine the witness. If several participants in the proceedings have requested a witness to be summoned and they fail to reach an agreement concerning the right of first examination, the court shall determine who examines the witness first.
It is prohibited to pose leading questions during a first examination. A first examination is followed by the second examination by the counter-party.
Leading questions may be posed in the second examination in order to verify the testimony given in the first examination. In the second examination, leading questions shall not be posed concerning new facts. The person who was the first to examine a witness may examine the witness again in order to clarify the answers given in the second examination. Leading questions may be posed only concerning the new facts treated in the second examination.
The court intervenes in a cross-examination in order to overrule prohibited, irrelevant or defamatory questions posed to the witness. The court has the right to pose additional questions to a witness who has been cross-examined. Taking into consideration the mental or physical condition of a witness, the court may prohibit cross-examination and examine the witness on its own initiative or on the basis of the written questions prepared by the parties to the court proceedings.
While interrogating the accused cross-examination is also used in the above-described way. The difference is that the prosecutor is the first to interrogate the accused. Thereafter, the accused is interrogated by other parties. Finally, the accused may be questioned by the other persons accused and their counsels (Sect. 293 of CCP).
The dispute in court is commenced by the speech of the prosecutor. Thereafter the victim, civil defendants and counsels shall be given the floor (Sect. 299 subs. 1 of CCP). In the dispute the parties may rely on evidence examined in the examination by the court only (Sect. 300 subs. 1 of CCP). After the dispute the judge gives the floor to the accused for his or her final statement (Sect. 303 subs. 1 CCP).
The role of the prosecutor in the court is so to bring the charge and to request the court to sentence the accused for the crimes he or she has committed according to the prosecution, and also to request the sentence to be imposed. The court is not bound by that request. Although the role of the prosecutor and the court in imposing the sentence is not provided clearly in CCP, it stems from the general role of the prosecutor and the judge in criminal procedure.
The Role of the Public Prosecutor in Court
The court procedure has an accusatorial nature, as according to Sect. 14 subs. 1 of CCP the prosecution, the defense counsel and the court have different procedural tasks. Hence, the court is given a passive role, in principle, settling the dispute between the prosecution and the defense counsel.
In court procedure the aim of the prosecutor is to achieve a guilty verdict and he or she has to use all procedural possibilities to reach that goal. The prosecutor is the dominus litis, as the CCP does not recognise private prosecution. Besides that the court is bound by the prosecutor, because when the prosecutor abstains from prosecuting, the court has to terminate the procedure and make an acquittal (Sect. 14 subs. 2 and Sect. 301 of CCP).
If there is sufficient evidence to prosecute the suspect of a certain crime the prosecutor has to present an appropriate charge and has no option to opt for a less severe charge.
Pursuant to Sect. 268 subs. 1 of CCP the court shall as a rule hear a criminal matter with regard to the accused only on the basis the statement of charges (the requirements are provided in Sect. 154 of CCP).
However, in a court hearing, the prosecutor may amend or supplement the charges until the completion of examination by court. If the charges are supplemented or substantially amended, the prosecutor shall prepare a new statement of charges. This document need not be prepared if the prosecutor amends the charges, resulting in mitigation of the situation of the accused (Sect. 268 subs. 2 of CCP).
Besides that, the prosecutor may amend legal assessment of a crime during the dispute on the basis of the same facts relating to the criminal offence, if this mitigates the situation of the accused (Sect. 268 subs. 3 of CCP). The same right is given to the court while making a judgment on the same clause (Sect. 268 subs. 4 of CCP). This is an exception as in general the court may not change or modify the charge.
One of the clear illustrations of the adversarial court procedure is cross-examination, the regulation of which is given in Sect. 288 of CCP. The rules are the following:
In cross-examination, the party to the court proceedings at whose request the witness has been summoned to the court is the first to examine the witness. If several participants in the proceedings have requested a witness to be summoned and they fail to reach an agreement concerning the right of first examination, the court shall determine who examines the witness first.
It is prohibited to pose leading questions during a first examination. A first examination is followed by the second examination by the counter-party.
Leading questions may be posed in the second examination in order to verify the testimony given in the first examination. In the second examination, leading questions shall not be posed concerning new facts. The person who was the first to examine a witness may examine the witness again in order to clarify the answers given in the second examination. Leading questions may be posed only concerning the new facts treated in the second examination.
The court intervenes in a cross-examination in order to overrule prohibited, irrelevant or defamatory questions posed to the witness. The court has the right to pose additional questions to a witness who has been cross-examined. Taking into consideration the mental or physical condition of a witness, the court may prohibit cross-examination and examine the witness on its own initiative or on the basis of the written questions prepared by the parties to the court proceedings.
While interrogating the accused cross-examination is also used in the above-described way. The difference is that the prosecutor is the first to interrogate the accused. Thereafter, the accused is interrogated by other parties. Finally, the accused may be questioned by the other persons accused and their counsels (Sect. 293 of CCP).
The dispute in court is commenced by the speech of the prosecutor. Thereafter the victim, civil defendants and counsels shall be given the floor (Sect. 299 subs. 1 of CCP). In the dispute the parties may rely on evidence examined in the examination by the court only (Sect. 300 subs. 1 of CCP). After the dispute the judge gives the floor to the accused for his or her final statement (Sect. 303 subs. 1 CCP).
The role of the prosecutor in the court is so to bring the charge and to request the court to sentence the accused for the crimes he or she has committed according to the prosecution, and also to request the sentence to be imposed. The court is not bound by that request. Although the role of the prosecutor and the court in imposing the sentence is not provided clearly in CCP, it stems from the general role of the prosecutor and the judge in criminal procedure.
