The Role of the Public Prosecutor in Court

Chapter III   
The Role of the Public Prosecutor in Court
The prosecutor has a central role in the court process. He may decide on the charges. The proper running of the process is to a large extent dependent on the actions taken by the prosecutor also.
The prosecutor must make his decisions to charge a suspect on the basis of the existing evidence. He has no powers to charge the suspect with a less serious offence despite the existence of sufficient evidence. However, the prosecutor may present alternative charges if he is uncertain of the outcome.

The court is tied to the charge. Section 11.3 CJP states that the court may pass a sentence only for the act for which a punishment has been requested, or for which the court may pass a sentence on its own initiative. The court is not bound by the heading or the reference to the applicable provisions in the charge.
This provision has been given quite restrictive interpretation in court practice. The court has no right to base its decision against the defendant on facts not presented by the prosecutor. On other hand, the court is not tied to the way the prosecutor has interpreted the law. For instance, the court may well come to another conclusion than the prosecutor, for example when considering whether the act should be defined as theft or robbery.

The general starting point is that the charge may not be altered during the process. However, the prosecutor has a limited right to make certain modifications:
-    the prosecutor may expand the charge to cover other crimes committed by the same defendant. Section 17.1 CJP states on this that a charge that has been brought shall not be altered. However, the prosecutor may extend a charge against the same defendant to cover another act, if the court considers this appropriate in view of the available evidence and other circumstances. This requires that the defendant is present in the court session. This expansion is possible only with the permission of the court; and
-    the prosecutor may within certain limits revise and/or to restrict the charge. Section 17.2 CJP states that the restriction of the charge by the prosecutor, a change of the reference to the applicable provision, or a reference to new circumstances in support of the charge, is not to be considered an alteration of the charge. Thus, the prosecutor may refer to new facts, provided that the facts refer to the same act. For example, refer to the fact that the robbery was committed by using a fire-arm.
The examination of witnesses
Witness examination and presentation of oral evidence in general has been subject to a recent, and fundamental, reform. In the previous system a judge conducted all examinations, which required that judges were compelled to read through the pre-trial investigation protocols before the trial. The prosecutor and the defense attorney had a secondary role only, and their functions were quite restricted. The impartiality of the courts under the old system was increasingly criticised until the system was reformed on October 1, 1997. Under the new system, the principal responsibility for examining witnesses and other persons has been left to the prosecutor and the defense attorney, and in this respect the criminal court is meant to have a secondary position only.
Examination procedures are now adversarial with main examination, cross-examination and re-examination phases. In practice, the order of hearing different persons (witnesses, the injured party and the defendant) varies as the law is ambiguous and court practices are not yet generally established. Court practices regarding the reading of pre-trial investigation protocols vary significantly, too, and a concerted effort to arrive at uniform practices is obviously required.

The new system puts emphasis on the prosecutor and the defense attorney. The responsibilities and functions of the prosecutor in particular have become decisively important. The full burden of proof rests on the prosecutor, who cannot expect any help from the court. The position of the prosecutor is somewhat contradictory because on the one hand, the principle of objectivity governs his action, but, on the other hand, the prosecutor should also strive to be an effective enforcer of criminal law. The prosecutor’s ultimate goal should nevertheless be finding out the truth. This goal sets limits to the prosecutor's possibilities of, e.g., speculating upon alternative hypotheses for which the prosecutor has no real proof, or of using destructive examination tactics to break down truthful witnesses. But conversely, the interests of finding out the truth may both enable, and, in casu, also oblige the prosecutor to use, for example, destructive examination tactics, too. The prosecutor should present his case – i.e. his view of the truth in the case – as convincingly and as effectively as possible.

Witnesses are thus examined by the parties. In this respect, some changes are planned to the CJP. At the moment, if the accused does not come to the main hearing, the hearing is always postponed and all the other parties and witnesses have to enter the court anew. A system is planned, according to which in these cases the witnesses can be heard without the accused being present. Afterwards in the postponed hearing they would be heard only if the accused so requires.
Section 17.33 of the CJP states the following:
1.    Questioning the witness shall be begun by the party who has called the witness, unless the court orders otherwise. The witness shall present a continuous account of the facts on his own initiative and, where necessary, with the aid of questions put to him.
2.    After the questioning referred to in paragraph (1) above, the witness shall be questioned by the opposing party. If the opposing party is not present or if the court otherwise deems this necessary, the witness shall be questioned by the court.
3.    Thereafter, the court and the parties may put questions to the witness. The party who has called the witness shall be reserved the first opportunity to put a question to the witness.
4.    If the witness has not been called by either party or if both parties have called the witness, the questioning of the witness shall be begun by the court, unless the court deems it more appropriate that the question is begun by one of the parties.
5.    Questions that owing to their wording, form or manner lead to a reply of a given sort shall not be allowed, except in questioning referred to in paragraphs (2) and (3) for the purpose of ascertaining the correspondence of the testimony and the true state of affairs. The court shall disallow manifestly irrelevant, confusing and otherwise inappropriate questions.

The rules described above apply to all witnesses. The witness is not on the side of either party, and should not take the interests of either party into account when giving testimony. Witnesses are advised to tell the truth, and are reminded of the penalty for perjury. This means that also in this case the questioning of the witness usually begins by the party who has called the witness (the defense). After that, the witness shall be questioned by the opposing party (the prosecutor) and the court.

All evidence must be presented live in a court. Since 2004, this rule has been amended by the Convention on Mutual Assistance in Criminal Matters between the Member States of the EU (Official Journal C 197, 12.07.2000). The witnesses may give their testimony by means of audio or video-link, provided that the technology permits the witness to be examined by the prosecutor, the defense and by the court. This regulation also applies in domestic criminal proceedings.
Closing speech
There are no specific provisions on the prosecutor’s closing speech. Usually the prosecutor sums up the evidence. In his closing speech the prosecutor has to give his view on the matter, how the court should decide the case and what offence the defendant should be sentenced for.
The prosecutor has also taken more active role in sentencing issues. The guidelines given by the Prosecutor-General are rather flexible. Usually, the prosecutor makes broadly defined requests on the sentence to be imposed only. Essential decisions concern the choice of the kind of the sentence (fines/imprisonment, conditional/unconditional sentence, imprisonment/ community service etc). Only in more serious cases where the only sanction in question would be unconditional imprisonment, the prosecutor may also make a suggestion on the length of the sentence. The court is not bound by the requests made by the prosecutor. The judge may even pass a sentence that goes beyond the prosecutor’s demands.
Mitigating and aggravating sentencing criteria are also part of the sentencing discussion. The prosecutor should pay attention to this, and not only take aggravating factors in account, but also mitigating criteria, in other words: apply the objectivity principle.