The Structure and Functions of the Prosecutor’s Office and its Relations with the Executive and Legislative Power
Chapter II
The Structure and Functions of the Prosecutor’s Office and its Relations with the Executive and Legislative Power
The structure and legal status of the Prosecutor’s Office
The Prosecutor’s Office Act determines that the office is an institution of the judiciary. The legal basis for the work of the prosecutor’s office can be found in the Constitution, the Prosecutor’s Office Act, and other laws and normative acts that regulate the prosecutor’s office.
The Prosecutor’s Office Act states:
- the tasks, functions, principles of operation of the prosecutor’s office;
- the powers of a public prosecutor;
- the structure of the prosecutor’s office;
- the methods of appointment and dismissal of a public prosecutor;
- the payment of a public prosecutor, and so forth.
The prosecutor’s office is three-layered, with a Prosecutor General at its head. The institutions of the prosecutor’s office are organised hierarchically and territorially. The prosecutor’s office consists of the Prosecutor General’s Office, the regional court prosecutor’s offices and district prosecutor’s offices, as well as a specialised prosecutor’s offices. The district prosecutor’s offices have been established according administrative territorial division of the State. The regional prosecutor’s offices have been established according to the territory division of the judiciary. Thus, five regional court prosecutor’s offices have been established, respectively in Riga, Kurzeme, Latgale, Zemgale and Vidzeme. Every regional court prosecutor’s office supervises the operation of the district prosecutor’s offices located in its territory. This is slightly complicated as the territorial division of the court regions do not always correspond to the administrative – territorial division.
The Act endows the Prosecutor General with the right to establish specialised prosecution offices. The establishment of these specialised prosecution offices is connected with the specific investigation character of several criminal offences. The most important of these specialised prosecution offices are:
- the custom prosecution office,
- the Riga road transport prosecution office,
- the finance and economic crime investigation prosecution office,
- the prosecution office for organised crime.
The status of district prosecutor’s office has been granted to the first three offices mentioned above, and the status of regional court prosecutor’s office to the latter.
The CCP has established the competences of the courts in first instance. The regional court as the court of the first instance should deal with cases of crimes that have been directed towards mankind, peace, criminal cases of war crimes, genocide, crimes against the state, murder under aggravating circumstances, and under especially aggravating circumstances (sects. 117 and 118 PC), robbery with serious consequences (sect. 176 PC), fraud on a large scale (sect. 177 PC), misappropriation on a large scale (sect. 179 PC), extortion in the group (sect. 183 PC) and other serious and especially serious criminal offences that are mentioned in this section; as well as all criminal cases, in which special protection measures of the persons, who are presenting evidence, have been taken, as well as all criminal cases of offences against morality and gender immunity if they have involved minors or persons under age. All other criminal cases, not mentioned in the listed section, go to the district court as the court of the first instance.
The organised crime office performs the administrative and control functions of a regional court prosecutor’s office in relation to all district level specialised prosecution offices. The public prosecutors of the organised crime office carry out the tasks of public prosecutor in relation to the following regional court criminal offences: money laundering (sect. 195 PC); economic crimes in the territory of the Riga regional court such as fraud (sect. 177 PC) and appropriation (sect. 179 PC), if committed on a large scale and resulting in material damage for a large number of people, or a state or credit institution; offences committed in prisons; offences committed in rail, road, water and air means of public transport; criminal offences committed by arrested or sentenced persons directly after their escape; and narcotics offences;
The customs prosecution office carries out the tasks of public prosecutor connected to crimes in the field of customs such as: smuggling, except cases of drug smuggling (sect. 190 PC); illegally imported goods (sect. 191 PC); criminal offences allegedly committed by customs officers; criminal offences, for which the pre-trial investigation has been carried out by the customs enforcement centre, and so forth.
The competences of the Riga road transport prosecution office lay mainly in the field of road safety of vehicles such as the violation of traffic rules (Highway Code) and the vehicle operation instructions (sect. 260 PC); drunken driving, under the influence of narcotics, psychotropic substances or other intoxicating substances (sect. 262 PC); the use of forged driving licences (sect. 275 PC); non-compliance with the prohibition to drive after the sanction of taking away a driving licence (sect. 312 PC), and so forth.
The finance and economic crime investigation prosecution office is competent to prosecute criminal offences in the field of state revenue and entre-preneurial activities like offences in the field of state revenue (sects. 217-219 PC); infringement of invention, copyright and neighbouring rights (sects. 147-149 PC); violation of provisions regarding storage and transport of ethyl alcohol and alcoholic beverages (sect. 221 PC); entrepreneurial activity offences or violation of the restrictions to these activities (sects. 207, 208, 210, 213, 214, 215, 217 PC) and so forth.
The Prosecutor General
All prosecutor’s offices are administrated and controlled by the Prosecutor General, who determines the internal structure and staff of prosecutor’s offices in accordance with the allocated national budgetary funds. The Saeima appoints the Prosecutor General for five years, after a proposal of the chair-person of the Supreme Court.
The Prosecutor General has the right to:
- annul groundless or illegal decisions by public prosecutors of the Prosecutor General’s Office and of the regional court;
- perform prosecutorial functions in all courts;
- participate in meetings of the Cabinet of Ministers (government) and to offer an opinion on issues to be examined;
- participate in the meetings of Parliament and, with the latter’s agreement, offer an opinion on those matters which directly affect the prosecutor’s office;
- submit an application to the Constitutional Court about the invalidation of laws and regulations, if the legal provisions of the lower judicial power are in contradiction with legal provisions of the higher judicial power;
- inspect prosecutor’s offices in person;
- lodge an appeal in the general interest of law against judgments that have come into force in civil and criminal cases.
The Saeima can dismiss the Prosecutor General after an especially authorised judge of the Supreme Court or the chairperson or the Supreme Court has established there is a case, and the general meeting of the judges of the Supreme Court has agreed. The chairperson of the Supreme Court, or the Saeima by one third of its members, is empowered to initiate an impeachment procedure against the prosecutor-general.
In accordance with the law of prosecutor’s office, the Prosecutor General can be dismissed when it has been ascertained that he:
- does not comply with general requirements that apply to a public prosecutor (citizenship, proficiency of the national language and such);
- is member of a party or political organisation;
- has not observed determined restrictions and prohibitions in the law as regards the prevention of a conflict of interests for a state official;
- has deliberately violated the law or been negligent whilst performing official duties as a result of which relevant destructive consequences have developed; or
- has acted dishonourably or in a manner not consistent with what is required in his position.
The functions of the public prosecutor
When adjudicating particular cases, the public prosecutor adopts his resolutions:
- independently and individually;
- on grounds of his conviction and the law;
- by observing the equality of persons in front of the law; and
- by observing the presumption of innocence.
The main functions of the public prosecutor have been established by the Prosecutor’s Office Act and entail that the public prosecutor:
- supervises operational work at the inquiry offices;
- organises, directs and performs pre-trial investigation, as well as gives directions to inquiry offices;
- maintains a state charge in criminal cases in all courts;
- lodges an appeal in criminal cases of illegal or groundless judgement of court, that have not came into legal force;
- supervises execution of punishment and the places where arrested, detained and guarded persons are being kept, and participates in hearings connected to changes in the punishment term or circumstances determined earlier;
- releases from deprivation of liberty or derogation places the persons who are kept there illegally; and
- has the right to perform examination in specific cases.
As regards the latter, in the field of protection of the rights of persons or the state outside the area of criminal law, the public prosecutor, when receiving an information of violation of the law which has no indications of a criminal offence, has the right to perform an examination if:
- the rights of acting disabled persons, invalids, minors, prisoners or any other similar persons, who have limited possibilities to protect their interests, have been violated;
- the rights of the state or a local authority have been violated;
- the Prosecutor – General or chief prosecutor find it necessary;
- there is evidence about a violation of the law by the president of the State, Saeima or the Cabinet of Ministers.
In addition, the public prosecutor can voice a protest in a civil case or an administrative case in which there has been an illegal or groundless judgment of court. This only if it has not yet come into force and the public prosecutor participates as one of the parties in the case. Entering a protest is a ground for proceedings at the higher authority.
The Prosecutor General has to be politically neutral. The post of Prosecutor General is not consistent with party membership or membership of a political organisation.
Qualification ranks are granted to public prosecutors in compliance with judge qualification grades. The qualification rank of the public prosecutor is granted in compliance with the post held, professional knowledge, qualifications and working experience.
The prosecutor’s office and Saeima
The Prosecutor General can be appointed and dismissed by the Saeima. The main function of Saeima is legislative. It passes laws, among them laws which regulate criminal prosecution, and determines the range of those offences that are considered to be criminal. The adopted laws are leading for officials during all phases of the criminal procedure (inquiry office, the prosecutor’s office, and the court). Saeima cannot give direction to the investigation in any particular case.
In the investigation of particularly important matters Saeima can establish a parliamentary investigation committee which will consist of deputies. The judicial basis for the work of the parliamentary investigation committee is regulated by a special law. After the proposal of the parliamentary investigation committee, the Prosecutor General can request the public prosecutor to participate in its meetings. The task of the authorised public prosecutor is then to examine whether the existing information at the disposal of the parliamentary investigation committee does not contain indications of committed or planned criminal offences. The Prosecutor General has a right to inform the committee of the results of the pre-trial investigation in a particular case to the extent to which he believes this is possible without jeopardising the interests of the investigation.
The prosecutor’s office and the executive power
The prosecutor’s office is an independent institution which has not been made subject to the control of any of the institutions of the executive. The prosecutor’s office independence from the executive power is ensured through its budget. The budget proposal of the prosecutor’s office is presented by the Prosecutor General to the Ministry of Finance. The Ministry of Finance, which prepares the annual law section of the state budget, submits it for consideration by the Cabinet of Ministers. Without the agreement of the prosecutor’s office the budget cannot be altered.
As far as decision making processes on laws and regulations which fall within the competence of the executive are concerned, the Prosecutor General and chief prosecutors of the Prosecutor General’s Office have a right to express their opinion on laws and regulations to be discussed in the meetings of the Cabinet of Ministers.
When the Prosecutor General is of the opinion that there is an incompliance of the laws and regulations issued by the Cabinet of Ministers with the Constitution and earlier laws, he has the right to turn to the constitutional court, with an application for invalidating them.
The abatement of criminal cases and refusal to process criminal cases
There are no prosecution priorities determined in the law and the public prosecutor has no right to prioritise criminal cases. One of the aims of the criminal prosecution is to ensure that every person who has committed criminal offence is punished. The prosecutor’s office can therefore also not set a general crime enforcement policy based on priority aims.
The public prosecutor, when examining criminal offences that have been reported, has the right to start prosecution or refuse to do so. When performing the pre-trial investigation in a criminal case the public prosecutor also has a right to terminate the investigation. However, there should be a legitimate ground for doing so.
These absolute grounds are the following:
- a criminal offence has not happened;
- there is no criminal offence in the act reported on;
- the time period for prosecution has passed;
- an amnesty has been granted;
- the suspect had not reached the age of criminal liability (fourteen years) at the moment of the commission of the offence;
- the death of the accused;
- a decision or judgement that has already become effective regarding termination of the case on the same grounds, on the same charge and against the same person;
- if the exclusion circumstances of the criminal liability have become clear (necessary defence, emergency, justifiable professional risk);
- if an attempt or preparation of the criminal offence has taken place or the preparation for the performance of a criminal offence (maximum penalty not exceeding two years), or preparation for the performance of a criminal offence or a less serious crime (maximum penalty not exceeding five years); and
- if the voluntary refusal from the commission of the criminal offence take place provided that there are no indications for other criminal offences.
At the request of the public prosecutor, a person can be released from criminal liability in specific cases laid down by law:
- if a person without a proper licence has handed over manufactured, obtained or stored arms, ammunition or high explosives voluntary;
- if a person has handed over narcotics or psychotropic substances voluntary, which this person had obtained, stored, transported or shipped;
- after refusal to give evidence if the person is fiancé, spouse, parent, grandparent, child, brother, sister, or grandchild of the accused or of another person who is on trial;
- if a person who has bribed, afterwards declares voluntary about the event, or if the bribe has been extorted.
Moreover, the public prosecutor can establish a release from criminal liability in the following cases:
- the person has committed an act, which in accordance with criminal law bears the hallmarks of a criminal offence, but which has not caused damages;
- the person, who has committed a criminal offence, has settled with the victim;
- a criminal offence has been committed by a minor and particular mitigating circumstances have been put forward and information obtained about him that would decrease his liability;
- a person who has helped to detect a serious or very serious crime committed by another person and that is more serious or more dangerous than the criminal offence committed by the person to be released from criminal liability.
Moreover, a criminal procedure already began can, amongst others, be terminated in case the charge has not been proved and there is no possibility for obtaining additional evidence or in case the person who has committed the offence is recognised as mentally deficient.
The decision to terminate the criminal procedure, as well as a decision to refuse to begin a criminal procedure, has to be motivated. In the motivation, circumstances and motives should be pointed out on which ground the law allows termination of a criminal procedure already initiated. For instance, if a criminal procedure is to be terminated because it is not possible to prove the charge, an analysis of the evidence gathered should be provided in the decision. The reasons why the evidence should not be considered sufficient need to be stated in the decision, as well as the reason why additional evidence cannot be collected. If a criminal procedure is terminated because no damage has been caused to justify a criminal penalty, the circumstances and the nature of the offence, and the offender’s character should be evaluated in the decision.
When a criminal procedure is terminated, a special procedure on how to proceed applies in some cases. When the person who has committed the criminal offence has settled with the victim, the law regulates how the settlement between the victim and the accused should be concluded. Always when a person is conditionally discharged there should be a written declaration by the accused. This declaration should be written on a voluntary basis only, and after the accused has been introduced to all materials of the criminal case.
When discharging conditionally, the public prosecutor determines the probation period, and he also sets out the conditions which have to be complied with. When the accused then commits a new criminal offence, or does not comply with the conditions whilst on probation, the decision to terminate the case is revoked. The case is subsequently forwarded to court for adjudication.
Use of agreement in the pre-trial process
At the initiative of the accused or his defender, the public prosecutor can conclude an agreement of admission, guilt and punishment. This only applies when the person is being accused of an offence which carries a statutory prison sentence not exceeding ten years.
Such an agreement can then be applied if the proven circumstances of the case have been clarified and if the accused agrees to the scale of the offence incriminated, its qualification and the use of an the agreement.
This agreement involving the public prosecutor, the accused and his defence lawyer is about type and measure of the punishment that the public prosecutor will put forward in court. After the mentioned agreement has been concluded, the public prosecutor forwards the case to the court together with an agreement protocol, and proposes to confirm the agreement and the punishment. The task of the court is to examine if the provisions of the CCP have not been violated during the agreement process. However, an examination of evidence does not take place. If the appropriate provisions have been observed, the court affirms the agreement concluded and prepares a guilty verdict. The punishment is determined in compliance with the agreement protocol.
The Structure and Functions of the Prosecutor’s Office and its Relations with the Executive and Legislative Power
The structure and legal status of the Prosecutor’s Office
The Prosecutor’s Office Act determines that the office is an institution of the judiciary. The legal basis for the work of the prosecutor’s office can be found in the Constitution, the Prosecutor’s Office Act, and other laws and normative acts that regulate the prosecutor’s office.
The Prosecutor’s Office Act states:
- the tasks, functions, principles of operation of the prosecutor’s office;
- the powers of a public prosecutor;
- the structure of the prosecutor’s office;
- the methods of appointment and dismissal of a public prosecutor;
- the payment of a public prosecutor, and so forth.
The prosecutor’s office is three-layered, with a Prosecutor General at its head. The institutions of the prosecutor’s office are organised hierarchically and territorially. The prosecutor’s office consists of the Prosecutor General’s Office, the regional court prosecutor’s offices and district prosecutor’s offices, as well as a specialised prosecutor’s offices. The district prosecutor’s offices have been established according administrative territorial division of the State. The regional prosecutor’s offices have been established according to the territory division of the judiciary. Thus, five regional court prosecutor’s offices have been established, respectively in Riga, Kurzeme, Latgale, Zemgale and Vidzeme. Every regional court prosecutor’s office supervises the operation of the district prosecutor’s offices located in its territory. This is slightly complicated as the territorial division of the court regions do not always correspond to the administrative – territorial division.
The Act endows the Prosecutor General with the right to establish specialised prosecution offices. The establishment of these specialised prosecution offices is connected with the specific investigation character of several criminal offences. The most important of these specialised prosecution offices are:
- the custom prosecution office,
- the Riga road transport prosecution office,
- the finance and economic crime investigation prosecution office,
- the prosecution office for organised crime.
The status of district prosecutor’s office has been granted to the first three offices mentioned above, and the status of regional court prosecutor’s office to the latter.
The CCP has established the competences of the courts in first instance. The regional court as the court of the first instance should deal with cases of crimes that have been directed towards mankind, peace, criminal cases of war crimes, genocide, crimes against the state, murder under aggravating circumstances, and under especially aggravating circumstances (sects. 117 and 118 PC), robbery with serious consequences (sect. 176 PC), fraud on a large scale (sect. 177 PC), misappropriation on a large scale (sect. 179 PC), extortion in the group (sect. 183 PC) and other serious and especially serious criminal offences that are mentioned in this section; as well as all criminal cases, in which special protection measures of the persons, who are presenting evidence, have been taken, as well as all criminal cases of offences against morality and gender immunity if they have involved minors or persons under age. All other criminal cases, not mentioned in the listed section, go to the district court as the court of the first instance.
The organised crime office performs the administrative and control functions of a regional court prosecutor’s office in relation to all district level specialised prosecution offices. The public prosecutors of the organised crime office carry out the tasks of public prosecutor in relation to the following regional court criminal offences: money laundering (sect. 195 PC); economic crimes in the territory of the Riga regional court such as fraud (sect. 177 PC) and appropriation (sect. 179 PC), if committed on a large scale and resulting in material damage for a large number of people, or a state or credit institution; offences committed in prisons; offences committed in rail, road, water and air means of public transport; criminal offences committed by arrested or sentenced persons directly after their escape; and narcotics offences;
The customs prosecution office carries out the tasks of public prosecutor connected to crimes in the field of customs such as: smuggling, except cases of drug smuggling (sect. 190 PC); illegally imported goods (sect. 191 PC); criminal offences allegedly committed by customs officers; criminal offences, for which the pre-trial investigation has been carried out by the customs enforcement centre, and so forth.
The competences of the Riga road transport prosecution office lay mainly in the field of road safety of vehicles such as the violation of traffic rules (Highway Code) and the vehicle operation instructions (sect. 260 PC); drunken driving, under the influence of narcotics, psychotropic substances or other intoxicating substances (sect. 262 PC); the use of forged driving licences (sect. 275 PC); non-compliance with the prohibition to drive after the sanction of taking away a driving licence (sect. 312 PC), and so forth.
The finance and economic crime investigation prosecution office is competent to prosecute criminal offences in the field of state revenue and entre-preneurial activities like offences in the field of state revenue (sects. 217-219 PC); infringement of invention, copyright and neighbouring rights (sects. 147-149 PC); violation of provisions regarding storage and transport of ethyl alcohol and alcoholic beverages (sect. 221 PC); entrepreneurial activity offences or violation of the restrictions to these activities (sects. 207, 208, 210, 213, 214, 215, 217 PC) and so forth.
The Prosecutor General
All prosecutor’s offices are administrated and controlled by the Prosecutor General, who determines the internal structure and staff of prosecutor’s offices in accordance with the allocated national budgetary funds. The Saeima appoints the Prosecutor General for five years, after a proposal of the chair-person of the Supreme Court.
The Prosecutor General has the right to:
- annul groundless or illegal decisions by public prosecutors of the Prosecutor General’s Office and of the regional court;
- perform prosecutorial functions in all courts;
- participate in meetings of the Cabinet of Ministers (government) and to offer an opinion on issues to be examined;
- participate in the meetings of Parliament and, with the latter’s agreement, offer an opinion on those matters which directly affect the prosecutor’s office;
- submit an application to the Constitutional Court about the invalidation of laws and regulations, if the legal provisions of the lower judicial power are in contradiction with legal provisions of the higher judicial power;
- inspect prosecutor’s offices in person;
- lodge an appeal in the general interest of law against judgments that have come into force in civil and criminal cases.
The Saeima can dismiss the Prosecutor General after an especially authorised judge of the Supreme Court or the chairperson or the Supreme Court has established there is a case, and the general meeting of the judges of the Supreme Court has agreed. The chairperson of the Supreme Court, or the Saeima by one third of its members, is empowered to initiate an impeachment procedure against the prosecutor-general.
In accordance with the law of prosecutor’s office, the Prosecutor General can be dismissed when it has been ascertained that he:
- does not comply with general requirements that apply to a public prosecutor (citizenship, proficiency of the national language and such);
- is member of a party or political organisation;
- has not observed determined restrictions and prohibitions in the law as regards the prevention of a conflict of interests for a state official;
- has deliberately violated the law or been negligent whilst performing official duties as a result of which relevant destructive consequences have developed; or
- has acted dishonourably or in a manner not consistent with what is required in his position.
The functions of the public prosecutor
When adjudicating particular cases, the public prosecutor adopts his resolutions:
- independently and individually;
- on grounds of his conviction and the law;
- by observing the equality of persons in front of the law; and
- by observing the presumption of innocence.
The main functions of the public prosecutor have been established by the Prosecutor’s Office Act and entail that the public prosecutor:
- supervises operational work at the inquiry offices;
- organises, directs and performs pre-trial investigation, as well as gives directions to inquiry offices;
- maintains a state charge in criminal cases in all courts;
- lodges an appeal in criminal cases of illegal or groundless judgement of court, that have not came into legal force;
- supervises execution of punishment and the places where arrested, detained and guarded persons are being kept, and participates in hearings connected to changes in the punishment term or circumstances determined earlier;
- releases from deprivation of liberty or derogation places the persons who are kept there illegally; and
- has the right to perform examination in specific cases.
As regards the latter, in the field of protection of the rights of persons or the state outside the area of criminal law, the public prosecutor, when receiving an information of violation of the law which has no indications of a criminal offence, has the right to perform an examination if:
- the rights of acting disabled persons, invalids, minors, prisoners or any other similar persons, who have limited possibilities to protect their interests, have been violated;
- the rights of the state or a local authority have been violated;
- the Prosecutor – General or chief prosecutor find it necessary;
- there is evidence about a violation of the law by the president of the State, Saeima or the Cabinet of Ministers.
In addition, the public prosecutor can voice a protest in a civil case or an administrative case in which there has been an illegal or groundless judgment of court. This only if it has not yet come into force and the public prosecutor participates as one of the parties in the case. Entering a protest is a ground for proceedings at the higher authority.
The Prosecutor General has to be politically neutral. The post of Prosecutor General is not consistent with party membership or membership of a political organisation.
Qualification ranks are granted to public prosecutors in compliance with judge qualification grades. The qualification rank of the public prosecutor is granted in compliance with the post held, professional knowledge, qualifications and working experience.
The prosecutor’s office and Saeima
The Prosecutor General can be appointed and dismissed by the Saeima. The main function of Saeima is legislative. It passes laws, among them laws which regulate criminal prosecution, and determines the range of those offences that are considered to be criminal. The adopted laws are leading for officials during all phases of the criminal procedure (inquiry office, the prosecutor’s office, and the court). Saeima cannot give direction to the investigation in any particular case.
In the investigation of particularly important matters Saeima can establish a parliamentary investigation committee which will consist of deputies. The judicial basis for the work of the parliamentary investigation committee is regulated by a special law. After the proposal of the parliamentary investigation committee, the Prosecutor General can request the public prosecutor to participate in its meetings. The task of the authorised public prosecutor is then to examine whether the existing information at the disposal of the parliamentary investigation committee does not contain indications of committed or planned criminal offences. The Prosecutor General has a right to inform the committee of the results of the pre-trial investigation in a particular case to the extent to which he believes this is possible without jeopardising the interests of the investigation.
The prosecutor’s office and the executive power
The prosecutor’s office is an independent institution which has not been made subject to the control of any of the institutions of the executive. The prosecutor’s office independence from the executive power is ensured through its budget. The budget proposal of the prosecutor’s office is presented by the Prosecutor General to the Ministry of Finance. The Ministry of Finance, which prepares the annual law section of the state budget, submits it for consideration by the Cabinet of Ministers. Without the agreement of the prosecutor’s office the budget cannot be altered.
As far as decision making processes on laws and regulations which fall within the competence of the executive are concerned, the Prosecutor General and chief prosecutors of the Prosecutor General’s Office have a right to express their opinion on laws and regulations to be discussed in the meetings of the Cabinet of Ministers.
When the Prosecutor General is of the opinion that there is an incompliance of the laws and regulations issued by the Cabinet of Ministers with the Constitution and earlier laws, he has the right to turn to the constitutional court, with an application for invalidating them.
The abatement of criminal cases and refusal to process criminal cases
There are no prosecution priorities determined in the law and the public prosecutor has no right to prioritise criminal cases. One of the aims of the criminal prosecution is to ensure that every person who has committed criminal offence is punished. The prosecutor’s office can therefore also not set a general crime enforcement policy based on priority aims.
The public prosecutor, when examining criminal offences that have been reported, has the right to start prosecution or refuse to do so. When performing the pre-trial investigation in a criminal case the public prosecutor also has a right to terminate the investigation. However, there should be a legitimate ground for doing so.
These absolute grounds are the following:
- a criminal offence has not happened;
- there is no criminal offence in the act reported on;
- the time period for prosecution has passed;
- an amnesty has been granted;
- the suspect had not reached the age of criminal liability (fourteen years) at the moment of the commission of the offence;
- the death of the accused;
- a decision or judgement that has already become effective regarding termination of the case on the same grounds, on the same charge and against the same person;
- if the exclusion circumstances of the criminal liability have become clear (necessary defence, emergency, justifiable professional risk);
- if an attempt or preparation of the criminal offence has taken place or the preparation for the performance of a criminal offence (maximum penalty not exceeding two years), or preparation for the performance of a criminal offence or a less serious crime (maximum penalty not exceeding five years); and
- if the voluntary refusal from the commission of the criminal offence take place provided that there are no indications for other criminal offences.
At the request of the public prosecutor, a person can be released from criminal liability in specific cases laid down by law:
- if a person without a proper licence has handed over manufactured, obtained or stored arms, ammunition or high explosives voluntary;
- if a person has handed over narcotics or psychotropic substances voluntary, which this person had obtained, stored, transported or shipped;
- after refusal to give evidence if the person is fiancé, spouse, parent, grandparent, child, brother, sister, or grandchild of the accused or of another person who is on trial;
- if a person who has bribed, afterwards declares voluntary about the event, or if the bribe has been extorted.
Moreover, the public prosecutor can establish a release from criminal liability in the following cases:
- the person has committed an act, which in accordance with criminal law bears the hallmarks of a criminal offence, but which has not caused damages;
- the person, who has committed a criminal offence, has settled with the victim;
- a criminal offence has been committed by a minor and particular mitigating circumstances have been put forward and information obtained about him that would decrease his liability;
- a person who has helped to detect a serious or very serious crime committed by another person and that is more serious or more dangerous than the criminal offence committed by the person to be released from criminal liability.
Moreover, a criminal procedure already began can, amongst others, be terminated in case the charge has not been proved and there is no possibility for obtaining additional evidence or in case the person who has committed the offence is recognised as mentally deficient.
The decision to terminate the criminal procedure, as well as a decision to refuse to begin a criminal procedure, has to be motivated. In the motivation, circumstances and motives should be pointed out on which ground the law allows termination of a criminal procedure already initiated. For instance, if a criminal procedure is to be terminated because it is not possible to prove the charge, an analysis of the evidence gathered should be provided in the decision. The reasons why the evidence should not be considered sufficient need to be stated in the decision, as well as the reason why additional evidence cannot be collected. If a criminal procedure is terminated because no damage has been caused to justify a criminal penalty, the circumstances and the nature of the offence, and the offender’s character should be evaluated in the decision.
When a criminal procedure is terminated, a special procedure on how to proceed applies in some cases. When the person who has committed the criminal offence has settled with the victim, the law regulates how the settlement between the victim and the accused should be concluded. Always when a person is conditionally discharged there should be a written declaration by the accused. This declaration should be written on a voluntary basis only, and after the accused has been introduced to all materials of the criminal case.
When discharging conditionally, the public prosecutor determines the probation period, and he also sets out the conditions which have to be complied with. When the accused then commits a new criminal offence, or does not comply with the conditions whilst on probation, the decision to terminate the case is revoked. The case is subsequently forwarded to court for adjudication.
Use of agreement in the pre-trial process
At the initiative of the accused or his defender, the public prosecutor can conclude an agreement of admission, guilt and punishment. This only applies when the person is being accused of an offence which carries a statutory prison sentence not exceeding ten years.
Such an agreement can then be applied if the proven circumstances of the case have been clarified and if the accused agrees to the scale of the offence incriminated, its qualification and the use of an the agreement.
This agreement involving the public prosecutor, the accused and his defence lawyer is about type and measure of the punishment that the public prosecutor will put forward in court. After the mentioned agreement has been concluded, the public prosecutor forwards the case to the court together with an agreement protocol, and proposes to confirm the agreement and the punishment. The task of the court is to examine if the provisions of the CCP have not been violated during the agreement process. However, an examination of evidence does not take place. If the appropriate provisions have been observed, the court affirms the agreement concluded and prepares a guilty verdict. The punishment is determined in compliance with the agreement protocol.
