The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
Under the principle of legality, the public prosecutor has no discretionary power to charge a less serious crime than the one for which there is sufficient evidence. Charging the suspect with a less serious crime would then be violation of duty. In fact, the public prosecutor decides on the content of the charge only in less serious misdemeanor cases, which he commits to trial directly, while in all other cases, including felony, he submits a proposal to the indictment chamber, which then decides.
The public prosecutor has competences in preparing trial and in determining the charges and content of the trial. In particular:
- the public prosecutor determines the date of the trial and serves upon the accused the summons to attend (Sect. 320 CCP). A copy of the summons is also served upon the civil claimant, if such a civil party is participating in the proceedings (Sect. 322 subs. 3 CCP);
- the public prosecutor notifies the names of the witnesses who will be required to testify in the proceedings to the accused. He also summons these witnesses to the hearing;
- in less serious misdemeanour cases the public prosecutor determines the offence or the offences for which the accused is going to be tried (Sects. 244, 245 and 308 subs. 3 CCP ). In more serious misdemeanours and in felony cases the public prosecutor addresses a proposal to the indictment chamber to open trial for certain offences (Sect. 308 subs. 1 CCP). The proceedings before the indictment chamber (or judicial council) may go through two instances, and even may be brought before the Areios Paghos. These proceedings are called intermediate proceedings. The final, irrevocable decision of the indictment chamber determines the offence(s) on which the trial is going to be conducted. Therefore, a copy of the decision of the indictment chamber accompanies the summons to the trial served by the public prosecutors office;
- after serving the summons, the public prosecutor cannot withdraw the case from trial. However, when after serving the summons, facts are discovered which give the offence a more serious character making a main investigation of the case necessary, he is allowed to do so (Sect. 323 CCP). Another exception is provided in Sect. 12 subs. 2 of the Law on Drugs (Law 1729/1987), as amended (Law 2161/1993), which gives the power to the public prosecutor at the court of first instance to suspend proceedings by a motivated decision endorsed by the public prosecutor at the Court of Appeal, in order to enable the accused charged with a drug related offence to follow a counselling – therapeutic programme. This procedure is provided on condition that the accused himself requested it. If participation in the programme is successful, the court or the indictment chamber may decide not to impose a penalty on the accused. If the accused does not follow the programme successfully, the proceedings are resumed.
At the beginning of the trial, the presiding judge directs the hearing and gives the floor to the public prosecutor, the parties, and even to the other judges of the court, to put questions to the examined person. He also gives the floor to them in order to make speeches, submissions, requests or objections on any matter concerning the case being heard (Sect. 333 CCP ).
The public prosecutor is obliged to commit for trial – either by direct summons or indirectly by making a proposal to the indictment chamber – all offences for which there is sufficient evidence (Sects. 308 and 310 CCP ).
At the end of the hearings, the court is obliged to decide, first, whether the accused is guilty of the offence he is charged with at the end of the hearing (Sect. 371 subs. 3 CCP ). The offence proven should be within the subject matter, i.e. the facts charged initially should include that offence. Consequently, if the facts described in the charge are sufficient to constitute a lesser offence than the one charged, the court may convict for such a lesser offence. This change is called: permitted modification or amendment of the charge. Also the public prosecutor may, in such cases, propose the court to convict for such a lesser offence in his summing up speech. For instance, if the charge is robbery and the use of violence has not been proven, the court may convict for simple theft. Or, if the charge is for intentional homicide and it is discovered that the accused had no intention to kill but was only negligent, the court may convict for manslaughter by negligence. The court may not convict, however, for a more serious offence or for a totally different one than the one charged, because this constitutes an unacceptable change of the charge which entails nullity of the proceedings. Therefore, if during the proceedings new facts are revealed which may constitute a totally different offence or a more serious offence than the one charged, the court must acquit the accused of the offence charged, and send a report on the offence revealed to the competent public prosecutor, together with all available evidence, and then the accused will be prosecuted on a new charge (Sect. 38 CCP ).
Cross-examination in the form practised in the Anglo-American legal system, is not known in Greece. However, the examination of witnesses and experts is in some respects similar to that form of examination, in other respects, however, it differs from it. Witnesses are first invited to give their testimony freely, without being interrupted, unless they start saying things irrelevant to the subject matter. Questions are asked only after the witness or expert has finished his deposition (Sect. 233 subs. 2 and subs. 3 CCP). Questions are put in the following order: by the presiding judge, the public prosecutor, the other judges, the counsel of the civil claimant, and, finally, by the counsel of the accused (Sect. 357 subs. 1–3 CCP).
The procedure of questioning the accused is similar to this if he speaks and defends himself, not making use of his right to silence. After he finishes his defense, the presiding judge, the public prosecutor and the other judges question him in the same way as the witnesses. However, the counsels of the parties cannot question him directly, but may ask the president to put certain questions (Sect. 366 subs. 1 CCP ).
After this evidence taking procedure and the defense of the accused, the presiding judge first gives the floor to the public prosecutor for his closing speech (Sect. 369 subs. 1 CCP). It should be noted that it is a general basic principle of criminal proceedings that no decision of a court is valid, unless the competent public prosecutor has been heard to give his opinion (Sect. 32 subs. 1 CCP ). This is considered an essential condition of due process. Therefore, in the event that a public prosecutor did not participate in the proceedings or did not give his opinion to the court before it decided, the procedure is null and void and a ground for appeal to the Areios Paghos is constituted (Sects. 171, 1 (b) and 510 subs. 1, Letter A CCP). The public prosecutor sums up the evidence, and proposes to the court either to convict or to acquit the accused, indicating also which of the charges he considers sufficiently proven in order to justify a conviction. He is free to express his opinion and is not bound by the charges made, either by him personally, or by another member of the prosecution service, according to the indivisibility principle. His closing speech refers at first to the question of guilt. Then the court gives its decision on the question of guilt or innocence. After this, if the court decides that the accused is guilty, a new – usually very short – debate follows, in which the public prosecutor proposes the sentence to be imposed or other legal consequences of the conviction and the counsel of the defense puts forward his corresponding submissions (Sect. 371 subs. 3 CCP ).
In their decision the judge or the court are not bound by the request or proposal of the public prosecutor in any way.
The Role of the Public Prosecutor in Court
Under the principle of legality, the public prosecutor has no discretionary power to charge a less serious crime than the one for which there is sufficient evidence. Charging the suspect with a less serious crime would then be violation of duty. In fact, the public prosecutor decides on the content of the charge only in less serious misdemeanor cases, which he commits to trial directly, while in all other cases, including felony, he submits a proposal to the indictment chamber, which then decides.
The public prosecutor has competences in preparing trial and in determining the charges and content of the trial. In particular:
- the public prosecutor determines the date of the trial and serves upon the accused the summons to attend (Sect. 320 CCP). A copy of the summons is also served upon the civil claimant, if such a civil party is participating in the proceedings (Sect. 322 subs. 3 CCP);
- the public prosecutor notifies the names of the witnesses who will be required to testify in the proceedings to the accused. He also summons these witnesses to the hearing;
- in less serious misdemeanour cases the public prosecutor determines the offence or the offences for which the accused is going to be tried (Sects. 244, 245 and 308 subs. 3 CCP ). In more serious misdemeanours and in felony cases the public prosecutor addresses a proposal to the indictment chamber to open trial for certain offences (Sect. 308 subs. 1 CCP). The proceedings before the indictment chamber (or judicial council) may go through two instances, and even may be brought before the Areios Paghos. These proceedings are called intermediate proceedings. The final, irrevocable decision of the indictment chamber determines the offence(s) on which the trial is going to be conducted. Therefore, a copy of the decision of the indictment chamber accompanies the summons to the trial served by the public prosecutors office;
- after serving the summons, the public prosecutor cannot withdraw the case from trial. However, when after serving the summons, facts are discovered which give the offence a more serious character making a main investigation of the case necessary, he is allowed to do so (Sect. 323 CCP). Another exception is provided in Sect. 12 subs. 2 of the Law on Drugs (Law 1729/1987), as amended (Law 2161/1993), which gives the power to the public prosecutor at the court of first instance to suspend proceedings by a motivated decision endorsed by the public prosecutor at the Court of Appeal, in order to enable the accused charged with a drug related offence to follow a counselling – therapeutic programme. This procedure is provided on condition that the accused himself requested it. If participation in the programme is successful, the court or the indictment chamber may decide not to impose a penalty on the accused. If the accused does not follow the programme successfully, the proceedings are resumed.
At the beginning of the trial, the presiding judge directs the hearing and gives the floor to the public prosecutor, the parties, and even to the other judges of the court, to put questions to the examined person. He also gives the floor to them in order to make speeches, submissions, requests or objections on any matter concerning the case being heard (Sect. 333 CCP ).
The public prosecutor is obliged to commit for trial – either by direct summons or indirectly by making a proposal to the indictment chamber – all offences for which there is sufficient evidence (Sects. 308 and 310 CCP ).
At the end of the hearings, the court is obliged to decide, first, whether the accused is guilty of the offence he is charged with at the end of the hearing (Sect. 371 subs. 3 CCP ). The offence proven should be within the subject matter, i.e. the facts charged initially should include that offence. Consequently, if the facts described in the charge are sufficient to constitute a lesser offence than the one charged, the court may convict for such a lesser offence. This change is called: permitted modification or amendment of the charge. Also the public prosecutor may, in such cases, propose the court to convict for such a lesser offence in his summing up speech. For instance, if the charge is robbery and the use of violence has not been proven, the court may convict for simple theft. Or, if the charge is for intentional homicide and it is discovered that the accused had no intention to kill but was only negligent, the court may convict for manslaughter by negligence. The court may not convict, however, for a more serious offence or for a totally different one than the one charged, because this constitutes an unacceptable change of the charge which entails nullity of the proceedings. Therefore, if during the proceedings new facts are revealed which may constitute a totally different offence or a more serious offence than the one charged, the court must acquit the accused of the offence charged, and send a report on the offence revealed to the competent public prosecutor, together with all available evidence, and then the accused will be prosecuted on a new charge (Sect. 38 CCP ).
Cross-examination in the form practised in the Anglo-American legal system, is not known in Greece. However, the examination of witnesses and experts is in some respects similar to that form of examination, in other respects, however, it differs from it. Witnesses are first invited to give their testimony freely, without being interrupted, unless they start saying things irrelevant to the subject matter. Questions are asked only after the witness or expert has finished his deposition (Sect. 233 subs. 2 and subs. 3 CCP). Questions are put in the following order: by the presiding judge, the public prosecutor, the other judges, the counsel of the civil claimant, and, finally, by the counsel of the accused (Sect. 357 subs. 1–3 CCP).
The procedure of questioning the accused is similar to this if he speaks and defends himself, not making use of his right to silence. After he finishes his defense, the presiding judge, the public prosecutor and the other judges question him in the same way as the witnesses. However, the counsels of the parties cannot question him directly, but may ask the president to put certain questions (Sect. 366 subs. 1 CCP ).
After this evidence taking procedure and the defense of the accused, the presiding judge first gives the floor to the public prosecutor for his closing speech (Sect. 369 subs. 1 CCP). It should be noted that it is a general basic principle of criminal proceedings that no decision of a court is valid, unless the competent public prosecutor has been heard to give his opinion (Sect. 32 subs. 1 CCP ). This is considered an essential condition of due process. Therefore, in the event that a public prosecutor did not participate in the proceedings or did not give his opinion to the court before it decided, the procedure is null and void and a ground for appeal to the Areios Paghos is constituted (Sects. 171, 1 (b) and 510 subs. 1, Letter A CCP). The public prosecutor sums up the evidence, and proposes to the court either to convict or to acquit the accused, indicating also which of the charges he considers sufficiently proven in order to justify a conviction. He is free to express his opinion and is not bound by the charges made, either by him personally, or by another member of the prosecution service, according to the indivisibility principle. His closing speech refers at first to the question of guilt. Then the court gives its decision on the question of guilt or innocence. After this, if the court decides that the accused is guilty, a new – usually very short – debate follows, in which the public prosecutor proposes the sentence to be imposed or other legal consequences of the conviction and the counsel of the defense puts forward his corresponding submissions (Sect. 371 subs. 3 CCP ).
In their decision the judge or the court are not bound by the request or proposal of the public prosecutor in any way.
