The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
In accordance with the accusatory principle (Anklageprinzip), criminal court proceedings cannot be initiated without a formal accusation (Anklageschrift) having been filed by the prosecutor. Formal accusations must normally be filed in written form (Sect. 200 CCP). Only in a special accelerated procedure reserved for very simple matters can the prosecutor present the accusation orally in court (Sect. 417 CCP).
The accusation describes the acts committed by the suspect, names the applicable provisions of the criminal law and sums up the evidence on which the accusation rests (Sect. 200 CCP). The prosecutor must not withhold relevant facts from the court in order to bring about a more lenient judgement; nor would such tactic be successful because the prosecutor must also submit the investigation file to the court so that the court would easily detect any manipulation of the facts. However, the prosecutor can, in the interest of efficient adjudication, dismiss one or more of several instances of a defendant’s criminal misconduct if the sanction to be expected for the remaining charges is deemed a sufficient reaction to the offender’s conduct as a whole (Sect. 154 CCP). Dropped charges can be taken up again within three months after the judgement for the remaining charges has entered into force (Sect. 154 subs. 4 CCP).
Once the prosecutor has filed a formal accusation and the court has accepted it, the accusation cannot be withdrawn (Sect. 157 CCP; so-called principle of immutability). Even if the prosecutor who represents the state at the trial comes to the conclusion that the charges are unfounded he cannot simply withdraw the case from the jurisdiction of the court. If this situation arises, he can – and is obliged to – ask the court to acquit the defendant, but the court can nevertheless convict if it evaluates the evidence differently. If the court has issued a penal order proposed by the prosecutor, and the defendant has appealed, the prosecutor can then withdraw the charges (Sect. 411 subs. 3 CCP).
It is important to note that the formal accusation binds the court and determines further proceedings only with respect to the factual allegations – the court cannot extend its investigation beyond the historical events related in the Anklageschrift (Sect. 155 CCP). The prosecutor can add new charges, i.e. accuse the defendant of additional instances of criminal conduct, at the trial; this can however be done only with the defendant’s consent (Sect. 266 CCP), and the court has discretion whether to accept the additional charges.
The court is free in its legal evaluation of the facts presented by the prosecutor. The court can, e.g., determine that the defendant’s conduct that was charged as robbery in fact constituted extortion and convict the defendant accordingly. If the court wishes to convict the defendant of a legal offence not named in the Anklageschrift, it must inform the defendant of its intention and thus give him an opportunity to adapt his defense to the new situation (Sect. 265 CCP). Within the limits set by the factual representations of the Anklageschrift, the court can even convict the defendant of a more serious offence; the court can, e.g., convict a defendant of murder when the prosecutor had regarded his act as mere manslaughter. The prosecutor does not need to give his consent to such changes – iura novit curia.
Court proceedings are dominated by the presiding judge. It is the presiding judge who determines, in performance of his duty, to clear up the facts and to find the truth (Sect. 244 subs. 2 CCP). In order to determine the truth, the court shall extend, on its own motion, the taking of evidence to all facts and items of proof that are relevant to the judgement. The presiding judge determines what evidence is presented in court, and interrogates witnesses and experts. The prosecution as well as the defense have the right to request the calling of additional witnesses, and the court can deny such requests only for a short list of reasons (Sect. 244 subs. 3 CCP). Having submitted a list of witnesses it deemed relevant along with the formal accusation, the prosecution rarely makes use of this right. Although the CCP provides for the option of cross-examination of witnesses by the prosecutor and defense counsel (Sect. 239 CCP), this option is never used in practice. All parties i.e. the prosecutor, the defendant, defense counsel, and counsel for the victim if the victim has joined the prosecution, have the right to subsequently ask questions of the defendant if he has chosen to make a statement as well as of any witness and expert (Sect. 240 subs. 2 CCP). This right to ask questions cannot be curtailed by the court except in cases of blatant abuse; the court can however reject individual questions that are inappropriate or clearly irrelevant (Sect. 241 subs. 2 CCP). The prosecutor can thus interrogate the defendant or any witness to the extent he deems necessary. In practice, most of the questioning is usually done by the presiding judge, and the prosecutor tends to remain silent or to ask just a few additional questions in order to clarify points particularly relevant to the prosecution.
The prosecutor is asked by the presiding judge to deliver the summing up (Plädoyer), i.e., to present the evidence and request a sentence, when the taking of evidence has been concluded (Sect. 258 subs. 1 CCP). The prosecutor is obliged to make a concluding statement, and to specify the charges of which he seeks conviction as well as the recommended sentence. The court is not bound in any way by the prosecutor’s request. Many judges tend to remain a little below the sentence recommended by the prosecution, but it also occurs that the court imposes a more severe sentence than that requested by the prosecutor.
The Role of the Public Prosecutor in Court
In accordance with the accusatory principle (Anklageprinzip), criminal court proceedings cannot be initiated without a formal accusation (Anklageschrift) having been filed by the prosecutor. Formal accusations must normally be filed in written form (Sect. 200 CCP). Only in a special accelerated procedure reserved for very simple matters can the prosecutor present the accusation orally in court (Sect. 417 CCP).
The accusation describes the acts committed by the suspect, names the applicable provisions of the criminal law and sums up the evidence on which the accusation rests (Sect. 200 CCP). The prosecutor must not withhold relevant facts from the court in order to bring about a more lenient judgement; nor would such tactic be successful because the prosecutor must also submit the investigation file to the court so that the court would easily detect any manipulation of the facts. However, the prosecutor can, in the interest of efficient adjudication, dismiss one or more of several instances of a defendant’s criminal misconduct if the sanction to be expected for the remaining charges is deemed a sufficient reaction to the offender’s conduct as a whole (Sect. 154 CCP). Dropped charges can be taken up again within three months after the judgement for the remaining charges has entered into force (Sect. 154 subs. 4 CCP).
Once the prosecutor has filed a formal accusation and the court has accepted it, the accusation cannot be withdrawn (Sect. 157 CCP; so-called principle of immutability). Even if the prosecutor who represents the state at the trial comes to the conclusion that the charges are unfounded he cannot simply withdraw the case from the jurisdiction of the court. If this situation arises, he can – and is obliged to – ask the court to acquit the defendant, but the court can nevertheless convict if it evaluates the evidence differently. If the court has issued a penal order proposed by the prosecutor, and the defendant has appealed, the prosecutor can then withdraw the charges (Sect. 411 subs. 3 CCP).
It is important to note that the formal accusation binds the court and determines further proceedings only with respect to the factual allegations – the court cannot extend its investigation beyond the historical events related in the Anklageschrift (Sect. 155 CCP). The prosecutor can add new charges, i.e. accuse the defendant of additional instances of criminal conduct, at the trial; this can however be done only with the defendant’s consent (Sect. 266 CCP), and the court has discretion whether to accept the additional charges.
The court is free in its legal evaluation of the facts presented by the prosecutor. The court can, e.g., determine that the defendant’s conduct that was charged as robbery in fact constituted extortion and convict the defendant accordingly. If the court wishes to convict the defendant of a legal offence not named in the Anklageschrift, it must inform the defendant of its intention and thus give him an opportunity to adapt his defense to the new situation (Sect. 265 CCP). Within the limits set by the factual representations of the Anklageschrift, the court can even convict the defendant of a more serious offence; the court can, e.g., convict a defendant of murder when the prosecutor had regarded his act as mere manslaughter. The prosecutor does not need to give his consent to such changes – iura novit curia.
Court proceedings are dominated by the presiding judge. It is the presiding judge who determines, in performance of his duty, to clear up the facts and to find the truth (Sect. 244 subs. 2 CCP). In order to determine the truth, the court shall extend, on its own motion, the taking of evidence to all facts and items of proof that are relevant to the judgement. The presiding judge determines what evidence is presented in court, and interrogates witnesses and experts. The prosecution as well as the defense have the right to request the calling of additional witnesses, and the court can deny such requests only for a short list of reasons (Sect. 244 subs. 3 CCP). Having submitted a list of witnesses it deemed relevant along with the formal accusation, the prosecution rarely makes use of this right. Although the CCP provides for the option of cross-examination of witnesses by the prosecutor and defense counsel (Sect. 239 CCP), this option is never used in practice. All parties i.e. the prosecutor, the defendant, defense counsel, and counsel for the victim if the victim has joined the prosecution, have the right to subsequently ask questions of the defendant if he has chosen to make a statement as well as of any witness and expert (Sect. 240 subs. 2 CCP). This right to ask questions cannot be curtailed by the court except in cases of blatant abuse; the court can however reject individual questions that are inappropriate or clearly irrelevant (Sect. 241 subs. 2 CCP). The prosecutor can thus interrogate the defendant or any witness to the extent he deems necessary. In practice, most of the questioning is usually done by the presiding judge, and the prosecutor tends to remain silent or to ask just a few additional questions in order to clarify points particularly relevant to the prosecution.
The prosecutor is asked by the presiding judge to deliver the summing up (Plädoyer), i.e., to present the evidence and request a sentence, when the taking of evidence has been concluded (Sect. 258 subs. 1 CCP). The prosecutor is obliged to make a concluding statement, and to specify the charges of which he seeks conviction as well as the recommended sentence. The court is not bound in any way by the prosecutor’s request. Many judges tend to remain a little below the sentence recommended by the prosecution, but it also occurs that the court imposes a more severe sentence than that requested by the prosecutor.
