The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
By filing the indictment to the court the case has reached the trial phase, during which, according to the principle of equality of arms, the prosecutor is placed in a position identical to that of the accused as regards the taking of evidence (the so-called client’s position). The prosecutor’s duties in the court are regulated in CCP and Order No. 12/2003 of the Prosecutor General.
At the beginning of the trial, the prosecutor reads out the indictment, and taking of evidence by the judge commences afterwards. No opening speech is allowed. First, pursuant to legal rules, the accused must be examined, and then the witnesses give evidence in turn, usually starting with the victim. As a rule, evidence of the prosecution precedes that of the defense, but between the limits of the above-mentioned legal provisions the judge determines the order at his discretion. It is the judge who examines the accused, witnesses and experts, but afterwards the prosecution and the defense may also address questions to the examined person.
The CCP contains, though in a relaxed form, the possibility of cross-examination. Pursuant to Sect. 295 subs. 1, on the proposal of the prosecutor, the accused or the defense counsel, the judge may permit the examination of a witness by the prosecutor or the defense counsel. Under this system the witness can be questioned, first by the party that has introduced the proposal, and then by the other party. Finally, the former is allowed to put other questions concerning matters that have arisen during the other party’s turn. Members of the court may question the witnesses at any time. This form of cross-examination, which is not more than an option at the discretion of the court, is not yet widely used in the daily practice of the courts, its occurrence is exceptional.
In the course of the hearing phase, the prosecutor retains his monopoly over the prosecution. Accordingly, he can modify, extend or even drop the charges any time before the court retires to reach the verdict. These decisions must be based on the actual evaluation of evidence, the principle of legality precludes the prosecutor from charging the accused with a less or more serious offence than that supported by evidence. At the same time, following the principle of the separation of procedural functions, the court by no means has the right to dispose of the charges.
In accordance with Sect. 8 subs. 1 of Order No. 12/2003 of the Prosecutor General the prosecutor shall drop the charge if it is established that no criminal offence has been committed by the accused. If the prosecutor considers the evidence presented at the hearing insufficient or duress, mistake, self-defense, or necessity seems to be confirmed, he shall propose an acquittal by the court.
The difference lies in the fact that dropping the charge by the prosecutor has binding force on the court, in the sense that the proceedings must be discontinued except for cases where private prosecution or supplementary private prosecution is allowed. If so, the court notifies the victim of the decision of the prosecutor, and the victim has 30 days from the serving of the notification to declare whether he intends to go on with the case as a private or supplementary private prosecutor.
In contrast, the court may ignore the prosecutor’s proposal on acquittal, which provides the court with the freedom of finding the accused guilty where the case turns on balancing evidence.
After the presentation of evidence, the prosecutor and the defense counsel deliver closing speeches, which will be followed by statements of the accused and the victim. The last word is always reserved for the accused. In his closing speech the prosecutor, referring also to the relevant legal provisions, makes recommendations to the court in the following matters:
- the established facts of the case and the offence the accused is to be sentenced for;
- the sort of sanction to be imposed, although no exact sentence can be suggested;
- the decision to be made in concomitant issues.
Should the prosecutor be of the opinion that the accused cannot be found guilty, he proposes acquittal with the supporting arguments.
The content of the prosecutorial closing speech is determined by the main features of the case. According to Order No. 12/2003 of the Prosecutor General, the prosecutor shall sum up the evidence impartially expounding his arguments as regards the incriminating and exonerating evidence as well. He shall make a motivated proposal in any particular question to be adjudged, paying special attention to the proper determination of the criminal offence supported by the facts, the principal and supplementary punishments, measures, the civil law claim of the victim, and the debarring of the accused from exercising parental rights in the case of crime against his child.
The court is not bound by the recommendations of the prosecutor, the only restriction to be observed is that no person may be convicted and no conduct may serve as a basis for a sentence, unless it is stated in the indictment.
It must be mentioned that the prosecutor is not present at every hearing. The prosecutor is requested to participate in the hearing at the court of first instance if the offence carries the punishment of five years imprisonment or more; the accused is in detention or has a mental disorder, or if the court has ordered that the prosecutor be present in the hearing for any other reasons. In the special procedure against juveniles, the procedure against the accused absent (default procedure), the procedure upon the waiver of trial, and summary trial the prosecutor is also obliged to take part in the hearing or open session of the court. In the absence of the prosecutor, the judge reads out the indictment, and the verdict shall be sent to the prosecution office.
The prosecutor may file an appeal against the sentence not only for stiffer punishment, but also in favour of the accused. Moreover, he may ask from the superior court a review of compliance with procedural rules.
The appeal must be forwarded with the case file to the court of second instance through the prosecution office attached to that court. After assessment of the documents, the prosecutor at the superior office decides whether to hold up, modify or withhold the appeal. Appeals from the accused or defense counsel shall also be reviewed by the superior prosecutor, upon which he sends his recommendations with the case file to the court of second instance.
Against decisions of the second instance court, the prosecutor, under the conditions provided by the CCP, may resort to extraordinary remedies that are restricted to dealing with questions of law only (except for the decision to reopen the case on the basis of new evidence).
The Role of the Public Prosecutor in Court
By filing the indictment to the court the case has reached the trial phase, during which, according to the principle of equality of arms, the prosecutor is placed in a position identical to that of the accused as regards the taking of evidence (the so-called client’s position). The prosecutor’s duties in the court are regulated in CCP and Order No. 12/2003 of the Prosecutor General.
At the beginning of the trial, the prosecutor reads out the indictment, and taking of evidence by the judge commences afterwards. No opening speech is allowed. First, pursuant to legal rules, the accused must be examined, and then the witnesses give evidence in turn, usually starting with the victim. As a rule, evidence of the prosecution precedes that of the defense, but between the limits of the above-mentioned legal provisions the judge determines the order at his discretion. It is the judge who examines the accused, witnesses and experts, but afterwards the prosecution and the defense may also address questions to the examined person.
The CCP contains, though in a relaxed form, the possibility of cross-examination. Pursuant to Sect. 295 subs. 1, on the proposal of the prosecutor, the accused or the defense counsel, the judge may permit the examination of a witness by the prosecutor or the defense counsel. Under this system the witness can be questioned, first by the party that has introduced the proposal, and then by the other party. Finally, the former is allowed to put other questions concerning matters that have arisen during the other party’s turn. Members of the court may question the witnesses at any time. This form of cross-examination, which is not more than an option at the discretion of the court, is not yet widely used in the daily practice of the courts, its occurrence is exceptional.
In the course of the hearing phase, the prosecutor retains his monopoly over the prosecution. Accordingly, he can modify, extend or even drop the charges any time before the court retires to reach the verdict. These decisions must be based on the actual evaluation of evidence, the principle of legality precludes the prosecutor from charging the accused with a less or more serious offence than that supported by evidence. At the same time, following the principle of the separation of procedural functions, the court by no means has the right to dispose of the charges.
In accordance with Sect. 8 subs. 1 of Order No. 12/2003 of the Prosecutor General the prosecutor shall drop the charge if it is established that no criminal offence has been committed by the accused. If the prosecutor considers the evidence presented at the hearing insufficient or duress, mistake, self-defense, or necessity seems to be confirmed, he shall propose an acquittal by the court.
The difference lies in the fact that dropping the charge by the prosecutor has binding force on the court, in the sense that the proceedings must be discontinued except for cases where private prosecution or supplementary private prosecution is allowed. If so, the court notifies the victim of the decision of the prosecutor, and the victim has 30 days from the serving of the notification to declare whether he intends to go on with the case as a private or supplementary private prosecutor.
In contrast, the court may ignore the prosecutor’s proposal on acquittal, which provides the court with the freedom of finding the accused guilty where the case turns on balancing evidence.
After the presentation of evidence, the prosecutor and the defense counsel deliver closing speeches, which will be followed by statements of the accused and the victim. The last word is always reserved for the accused. In his closing speech the prosecutor, referring also to the relevant legal provisions, makes recommendations to the court in the following matters:
- the established facts of the case and the offence the accused is to be sentenced for;
- the sort of sanction to be imposed, although no exact sentence can be suggested;
- the decision to be made in concomitant issues.
Should the prosecutor be of the opinion that the accused cannot be found guilty, he proposes acquittal with the supporting arguments.
The content of the prosecutorial closing speech is determined by the main features of the case. According to Order No. 12/2003 of the Prosecutor General, the prosecutor shall sum up the evidence impartially expounding his arguments as regards the incriminating and exonerating evidence as well. He shall make a motivated proposal in any particular question to be adjudged, paying special attention to the proper determination of the criminal offence supported by the facts, the principal and supplementary punishments, measures, the civil law claim of the victim, and the debarring of the accused from exercising parental rights in the case of crime against his child.
The court is not bound by the recommendations of the prosecutor, the only restriction to be observed is that no person may be convicted and no conduct may serve as a basis for a sentence, unless it is stated in the indictment.
It must be mentioned that the prosecutor is not present at every hearing. The prosecutor is requested to participate in the hearing at the court of first instance if the offence carries the punishment of five years imprisonment or more; the accused is in detention or has a mental disorder, or if the court has ordered that the prosecutor be present in the hearing for any other reasons. In the special procedure against juveniles, the procedure against the accused absent (default procedure), the procedure upon the waiver of trial, and summary trial the prosecutor is also obliged to take part in the hearing or open session of the court. In the absence of the prosecutor, the judge reads out the indictment, and the verdict shall be sent to the prosecution office.
The prosecutor may file an appeal against the sentence not only for stiffer punishment, but also in favour of the accused. Moreover, he may ask from the superior court a review of compliance with procedural rules.
The appeal must be forwarded with the case file to the court of second instance through the prosecution office attached to that court. After assessment of the documents, the prosecutor at the superior office decides whether to hold up, modify or withhold the appeal. Appeals from the accused or defense counsel shall also be reviewed by the superior prosecutor, upon which he sends his recommendations with the case file to the court of second instance.
Against decisions of the second instance court, the prosecutor, under the conditions provided by the CCP, may resort to extraordinary remedies that are restricted to dealing with questions of law only (except for the decision to reopen the case on the basis of new evidence).
