The Role of the Public Prosecutor in Court

Chapter III   
The Role of the Public Prosecutor in Court
Wherever the criminal court, the mission of the public prosecutor is to prosecute in the name of society. The prosecutor’s task is to ask for the application of criminal law which explains why the prosecutor is sometimes called ‘the society’s attorney’. He acts exactly as a party because he is engaged in the trial in the same way as a private party that wants to see its rights recognised. That is why it is interesting to study the specific role of the public prosecutor in front of each ordinary court and then the common missions of the public prosecutor during hearings.
Attributions of prosecutors
Prosecutor attached to the police court
According to Sect. 45 al.1 CCP, the district prosecutor attached to the district court represents the prosecution before the police court for the fifth class of petty offences. If he deems it appropriate, he may also represent it in any matter in place of the police superintendent who usually performs such functions.
However, in the case of forestry offences referred to the police courts, the duties of the public prosecutor are performed either by a waters and forestry administration engineer, or by a district head or a technical officer, who are appointed by the waters and forestry administration warden.

Moreover, the code of criminal procedure contains exceptions. When the police superintendent is unable to attend, the prosecutor general appoints one or more substitutes chosen from the police superintendents, police majors or captains residing within the territorial jurisdiction of the district court for an entire year (Sect. 46 al.1 CCP). In exceptional circumstances, and where it is absolutely necessity for the proceedings during a hearing, the judge of the court for minor offences may call upon the mayor of the locality where the police court sits, or one of his deputies, to perform the public prosecutor’s duties (Sect. 46 al.2 CCP).
Prosecutor attached to the correctional court and assize court
Regarding the judgement of misdemeanours and felonies, the district prosecutor attached to the correctional and assize court is the one attached to the district court.
Prosecutor general attached to the appeal court
In person, or through his deputies, the prosecutor general represents the public prosecutor before the appeal court and before the assize court established at the seat of the appeal court, subject to the provisions of Sect. 105 of the Forestry Code and of Sect. 446 of the Rural Code. Under the same conditions, he may represent the public prosecutor before the other assize courts within the area of jurisdiction of the appeal court.

The prosecutor general has the duty of supervising the implementation of criminal laws throughout the area of the appeal court’s territorial jurisdiction. Each district prosecutor sends him a monthly statement of cases pending within the jurisdiction for this purpose. In the performance of his duties, the prosecutor general has the right to require direct assistance from police.

The Minister of Justice may notify the prosecutor general of offences against criminal laws of which he has gained knowledge, direct him to initiate or to cause the initiation of a prosecution by written instructions which are attached to the file of the case, and to refer to the competent court such written submissions as the Minister deems appropriate.

The prosecutor general holds authority over all the public prosecutors within the area of jurisdiction of the appeal court. He has the same prerogatives in respect of these prosecutors as those granted to the Minister of Justice under the previous Section. The duties of the public prosecutor attached to the investigating chamber are performed by the prosecutor general or by his deputies. A clerk of the appeal court performs those of the court office.

The correctional appeals division is composed of a presiding judge and of two appeal judges. The duties of the public prosecutor are performed by the prosecutor general or by one of his advocates general or deputies.
In person or through his deputies, the district prosecutor also represents the public prosecutor before the assize court established at the seat of the district court.
Prosecutor general attached to the court of Cassation
The peculiarity here is that the prosecutor general is not a principal party but a joined party in the trial. Thus, the court is requested to hold a trial by the private parties and not by its prosecutor general.
The public prosecutor during the trial
The principle that the public prosecutor must attend trial can be deducted from the following provisions. The public prosecutor is represented before each criminal court. It takes part in hearings of courts of trial; every decision is read in its presence. It ensures the enforcement of court decisions (Sect. 32 CCP). The duties of the public prosecutor attached to the investigating chamber are performed by the prosecutor general or by his deputies. Those of the court office are performed by a clerk of the appeal court (Sect. 192 CCP). The original draft of the judgement is dated and mentions the names of the judges who gave it. The presence of the public prosecutor at the hearing must be recorded therein. After having been signed by the presiding judge and by the clerk, the original copy is deposited with the court office no later than three days after the reading of the judgement. This deposit is entered on the register specially kept for this purpose in the court office. Where the presiding judge is prevented from signing, this is noted in the original draft, which is signed by the judge who reads the judgement (Sect. 486 CCP). The correctional appeals division is composed of a presiding judge and of two appeal judges. The duties of the public prosecutor are performed by the prosecutor general or by one of his advocates general or deputies. Those of the clerk are carried out by a clerk of the appeal court (Sect. 510 CCP). These decisions are declared void when they are not made by the prescribed number of judges or when they were made by judges who did not attend all the hearings of the case. Where several hearings were devoted to the same case, it is presumed that the judges who took part in the decision took part in all these hearings (Sect. 592 CCP).

We can conclude that if the prosecutor does not attend the trial, the decision will be declared void. It is true that it is possible to replace the prosecutor during the hearing as a result of the principle of indivisibility, but the seat of the public prosecutor cannot stay free. Until the enforcement of the law of June 15, 2000, the attendance of the prosecutor was obligatory even when the court made a decision on the merits of the civil action only. However, this obligation does not exist anymore.
The essential role of the prosecutor during the hearings
During hearings, at first, the public prosecutor must be heard in an oral submission. Through this submission, the prosecutor, who defends society and public order will speak his mind in an objective and impartial manner. Actually, these submissions contain a proposal for a penalty to the court. This proposal is never binding for the judge but is the logical consequence of the submissions presented before. This proposal takes into account the gravity of the facts, the behaviour and personality of the offender and the existence of aggravating circumstances. Furthermore, the prosecutor will have to give an opinion on how to deal with interdictions, complementary penalties.

Although the public prosecutor cannot change the charge when this seems necessary during the court session, the court can do it under some conditions. If the facts that appeared during the hearing were contained in the charge, the judges must change the qualification and invite the offender to give some explanations about this change. If a new element appears during the hearing, the judges can change the qualification but the offender has to accept a discussion on this element. If the facts are not in the charge the judges must use the immediate hearing proceedings.

According to Sect. 442-1 CCP, subject to the provisions of Sect. 401 CCP, the public prosecutor and the lawyers for the parties may put questions directly to the defendant, the civil party, the witnesses or anyone else called to testify, by asking the presiding judge for leave to speak.

After each statement, the presiding judge and, in the terms set out in Sect. 442-1 CCP, the public prosecutor and the parties, ask the witness such questions as they consider necessary. The witness may withdraw after his statement unless the presiding judge decides otherwise. The public prosecutor, as well as the civil party and the defendant, may request, and the presiding judge may always order, a witness to withdraw temporarily from the courtroom after making his statement, to be brought back and reheard if necessary following other statements, with or without a confrontation (Sect. 454 CCP).