The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
The Prosecutor’s Office is an independent national institution, which performs the functions provided for in the Constitution, the Law on the Prosecutor’s Office, international treaties as well as other legislation. The Law on the Prosecutor’s Office (in force since May 1, 2003) establishes the structure (organisation), status, functions, basic principles and control of activities, and basic principles of work organisation of the prosecutor’s office, as well as the status of the prosecutors, their competence, rights and duties, course of service, conditions for providing them with incentives and their official liability conditions, social guarantees, and so forth.
The organisation of the prosecution service
All prosecutors are organised into a centralised hierarchical system of the prosecutor’s office, consisting of the Prosecutor General’s Office and territorial offices: five regional prosecutor’s offices and 51 district prosecutor’s office. The Prosecutor General is appointed for a term of seven years by the President with the approval of the Seimas (Parliament). Deputies of the Prosecutor General are appointed for a term of seven years by the President upon the nomination of the Prosecutor General. The posts of the Prosecutor General and his deputy may be filled by a person who is 35 years old and over, is of high moral character, has a good command of the Lithuanian language, is a national, has an MA in law or a professional lawyer qualification degree, has a record of at least ten years of work as a prosecutor or at least ten years standing as a judge or a record of at least ten years of service as a university law professor with a Doctor or Habilitation Doctor in Social Sciences (Law) degree.
The Prosecutor General’s Office consists of departments and divisions headed by chief prosecutors. It presides over the territorial prosecutor’s offices and controls their activities. Chief prosecutors head the regional and district prosecutor’s offices.
There are no specialised prosecutor’s offices. However, in the Prosecutor General’s Office and five regional prosecutor’s offices organised crime and corruption investigation subdivisions have been set up. These subdivisions specialise in the investigation of the above type of crimes. In addition, individual prosecutors may specialise in investigation, organisation and supervision of investigations in the sphere of financial crimes, crimes against intellectual property law, juvenile justice, and so forth.
The Prosecutor General heads the Prosecutor General’s Office. His main task is to organise the work of the prosecutor’s office to ensure that the prosecutor’s office is able to perform all the prosecutor’s functions determined by law, to ensure justice, and to assist the court in its administration.
Orders, decrees, instructions, and other regulations of the Prosecutor General, which establish the procedure for the organisation of procedural activity and service, are binding for prosecutors.
Tasks and duties of the Prosecutor General
The Prosecutor General:
- establishes and reorganises the territorial prosecutor’s offices, establishes their status, structure and activity area;
- controls the economic and financial activities of the Prosecutor General’s Office and the territorial prosecutor’s offices;
- determines the competence of the Prosecutor General’s Office, territorial prosecutor’s offices, Prosecutor General and his deputies, prosecutors, commissions, by approving the Competence Regulations by his order;
- upon the motion of the Selection Commission, appoints the prosecutors, including the chiefs of the departments and divisions of the Prosecutor General’s Office and of territorial prosecutor’s offices, to their office; admits persons to service as public servants and employees;
- acts as the chairman of an advisory body, College of Prosecutors, which he himself forms from the deputies of the Prosecutor General and regional chief prosecutors;
- forms the following commissions that assist him in his presiding role:
• the Selection Commission – for the selection of candidates for the positions at the prosecutor’s office;
• the Examination Commission – for assessing the candidate prosecutors’ professional qualification;
• the Ethics Commission – for the investigation and evaluation of violations of the Prosecutors’ Ethics Code;
• the Performance Evaluation Commission – for the evaluation of the prosecutors’ performance, their qualification and suitability for office
- Pursuant to the conclusions of the Performance Evaluation Commission, awards the prosecutors qualification ranks after the evaluation of their performance, and in accordance with the procedure of incentives. The Law on the Prosecutor’s Office stipulates that the prosecutors shall be awarded the following qualification ranks denoting their qualification or position:
• junior justice adviser;
• justice adviser;
• senior justice adviser;
• chief justice adviser;
• state justice adviser;
• chief state justice adviser.
The Prosecutor General shall be awarded the qualification rank of the chief state justice adviser, whereas the Deputy Prosecutor General shall be awarded the qualification rank of the state justice adviser by the President of the Republic when appointing them to respective positions.
The Prosecutor General:
- suspends the immunity of the Deputy Prosecutor General and commences a pre-trial investigation with regard to any criminal act committed by him, having notified the President of the Republic thereof;
- suspends the immunity of a prosecutor and commences a pre-trial investigation with regard to a criminal act committed by him;
- suspends the immunity of a prosecutor by virtue of the violation of administrative law;
- orders to carry out an official inspection with regard to a prosecutor’s misconduct in office or action discrediting the name of a prosecutor;
- provides information about the activities of the prosecutor’s office to the Government and society at large.
- submits conclusions and proposals as to the application of laws and other regulatory enactments, as well as the preparation of their drafts, to the President of the Republic, the Seimas and the Government.
Tasks and duties of the prosecutor
Sect. 118 Constitution establishes the main functions of the prosecutor, namely: ‘Public prosecutors shall prosecute criminal cases on behalf of the State, shall carry out criminal prosecutions, and shall supervise the activities of the interrogative bodies’. Furthermore, the Law on the Prosecutor’s Office provides a relatively thorough account of the main functions and powers of the prosecutor’s office. According to this provision, the prosecutor’s office shall:
- organise and direct pre-trial investigation;
- conduct pre-trial investigation or individual actions of pre-trial investigation;
- control the activities of pre-trial investigation officers in criminal proceedings;
- prosecute on behalf of the State;
- supervise the submission of the judgments for execution and the execution thereof;
- co-ordinate the actions of the pre-trial investigation bodies pertaining to investigation of criminal acts;
- protect the public interest;
- examine, within its competence, petitions, applications and complaints submitted by individuals;
- take part in the drawing up and implementation of national and international criminal acts prevention programmes;
- take part in the legislative process; and
- fulfil other functions prescribed by law; for instance, supervise the way central or competent institutions co-operate with institutions of foreign countries and international organisations on mutual assistance in criminal cases concerning extradition and the European Arrest Warrant.
The provisions of the CCP regulate the status of a prosecutor during criminal proceedings. Lawful demands and decisions of the prosecutor shall be binding on all state and municipal institutions and establishments, their officials, public servants and employees, natural and legal persons and must be complied with within the entire territory. Failure to comply with the demands and decisions of the prosecutor shall make the abovelisted entities liable under law.
Accountability
According to the legislation, the prosecutor’s office is directly accountable to the President and Seimas. The Prosecutor General shall be accountable for the activities of the prosecutor’s office to the President and the Seimas once a year. None of the other institutions of the State shall be politically or in any other way accountable for the policy of the prosecutor’s office. Seimas, having evaluated the account of the activities of the prosecutor’s office, the current state of crime in the country and any other facts important for society, shall establish the priorities in the activities of the prosecutor’s office, taking into account which criminal acts are deemed to be important issues for society at that time in respect of which it is crucial to take immediate measures and to implement them decisively.
The CCP establishes a safeguard mechanism with regard to the legitimacy of individual decisions under which individuals become subject to criminal prosecution. According to national legislation, the actions and decisions of a prosecutor can be appealed against in accordance with the procedure established by law. Procedural decisions in a criminal case are made independently and individually, and therefore, cannot be considered to be an issue of parliamentary assessment.
By analysing the annual account of the Prosecutor General’s Office’s work against indicated priorities, and then evaluating what has been found, Seimas exercises parliamentary control over the activities of the prosecutor’s office. However, by evaluating and assessing prosecution of criminal acts which have been given priority, Seimas does not imply that the prosecutor is entitled not to investigate other offences. Further to the CCP (sect. 2), whenever elements of a criminal act are discovered, prosecutors or pre-trial investigation institutions are obliged, within the limits of their competences, to take all measures provided by law to conduct an investigation, and to establish that a criminal act has been committed.
On the other hand, the CCP lies down a number of criminal acts in respect of which criminal proceedings can be instituted only when a claim of the victim or a statement of his legal representative is submitted (for instance, restriction of the freedom of a person’s actions, sexual harassment, slander, abuse, and so forth). Pre-trial investigation is not conducted in the aforementioned cases; the aggrieved person applies to the court directly, besides, the prosecutor does not participate in the court hearings of such cases. The prosecutor has a right to institute criminal proceedings only in cases when such criminal acts are considered to be of great importance to society, regardless of the fact whether a claim of the victim or a statement of his legal representative has been submitted or not.
The Prosecutor General approves of guidelines, that is to say documents containing information on the organisation of the activities of criminal proceedings. In these guidelines is laid down when a specific procedure must be followed while conducting criminal proceedings, for instance, Guidelines on drawing up a bill of indictment, Guidelines on disposal of the case by issuing a penal order, Guidelines on granting the non-disclosure of identity to a witness or a victim and on the procedural drawing up of the decision on this issue, and so forth. In addition, the Prosecutor General, together with the Ministry of Justice, approves of the legal acts relating to the application of the provisions of criminal proceedings. These legal acts may be named ‘Rules’, ‘System’, ‘Examples’ or ‘Guidelines’, examples are the registration system of the commencement of pre-trial investigation, procedural documents (Forms), Guidelines on the control procedure of compliance with the conditions determined by the measures of constraint (except for arrest), and so forth. The Prosecutor General’s Guidelines and other regulatory enactments, for example, the resolutions of the Supreme Court Senate, the consultations of the Supreme Court, which make uniform practice of the pre-trial investigation, public prosecution and implementation of sentences, are binding on all the prosecutors and pre-trial investigation officers.
Non-commencement or suspension of criminal prosecution
While fulfilling his functions, the prosecutor acts independently and complies with the provisions of the Constitution and other legal acts. He is obliged to prosecute every crime that was brought to his notice. However, sect. 3 CCP establishes concrete cases when pre-trial investigation (as well as criminal prosecution) shall not be commenced. These cases are as follows:
- where there are no elements of a crime in the act that has been committed;
- where the statutory period of limitations for criminal liability has expired;
- where a criminal act has been committed by a person who, under international law, has immunity from criminal jurisdiction, or where there is no authorisation of a competent body for prosecuting the person, when such an authorisation is obligatory under the law;
- where, at the moment the criminal act took place, the person, who has committed the said act, had not yet reached the age from which he is held liable under criminal law;
- where the person who is accused of committing a criminal act reconciles with a victim, in cases concerning where criminal proceedings are commenced only when a claim of the victim or a statement of his legal representative has been submitted;
- in the absence of the victim’s complaint, or a statement of his lawful representative, or the prosecutor’s demand to institute the proceedings, when such proceedings may be commenced only pursuant to the victim’s complaint, an application of his lawful representative or the prosecutor’s demand;
- where the person who has committed a criminal act has died;
- where, with regard to the same offence, the court’s judgment of conviction, or the court’s ruling/prosecutor’s decision to terminate the proceedings have become effective;
- where there are certain circumstances that remove criminal liability (for instance, selfdefence, necessity, scientific experiment, and so forth).
Neither this nor the following list of the grounds for suspension of the criminal prosecution is a discretionary decision of the prosecutor. The law of criminal procedure imperatively specifies particular cases when the prosecutor is obliged to refuse to conduct criminal prosecution, and, in case it has been commenced, to terminate criminal prosecution. Whenever a prosecutor decides not to prosecute (by refusing to commence it or, in a case under investigation, terminating it), he is obliged to substantiate it by drafting a reasoned decision. If the pre-trial investigation has already been carried out, the criminal case is handed over to the court. The laws forbid settling the criminal case out of court or under any other grounds than those established in the aforementioned lists.
The legislation provides that not only the prosecutor but also the head of the pre-trial investigation institution, or a person authorised by the latter, may decide to commence pre-trial investigation. Therefore, the prosecutor cannot consider himself the monopolist at the pre-trial investigation stage. The role of the prosecutor at this stage ought to be defined in another way because the law states that he organises and supervises the pre-trial investigation. Moreover, the law of criminal proceedings grants a right to the prosecutor to perform all the pre-trial investigation or separate actions thereof individually, obliges him to control the pre-trial investigation when it is carried out by the pre-trial investigation officers, enables him to give obligatory instructions to the pre-trial investigation officers and to cancel their illegitimate or ungrounded procedural decisions. Only the prosecutor is entitled to address the pre-trial judge with a request for imposing arrest upon the suspect, for carrying out a search, seizure, seizure of postal consignments, and for performing other actions falling within the competence of the said judge. The prosecutor is the only person who is empowered to decide to terminate a pre-trial investigation, to resume the suspended pre-trial investigation, or to conclude the pre-trial investigation by drawing a bill of indictment. Without any doubt, the legislator, having given such powers to the prosecutor, has assigned him the role of the head and the organiser of criminal prosecution.
By obliging the prosecutor to decide on the suspension of the criminal prosecution, the CCP (sect. 212) provides an exhaustive list of the grounds on which criminal prosecution shall be suspended:
- where, during pre-trial investigation, certain circumstances are discovered, in respect of which the criminal proceedings may not be commenced (those circumstances are listed above);
- where insufficient information proving the suspect's culpability in committing a criminal act is gathered during the pre-trial investigation;
- where it is established that the person and the act committed by him have ceased to be dangerous owing to the change of the circumstances;
- where it is established that the criminal act is no longer dangerous because of its insignificance;
- where the suspect and the victim reconcile under the cases established by the Penal Code (hereafter PC);
- where the suspect is surrendered under bail in particular cases established by the PC;
- where the suspect helps to disclose criminal acts committed by an organised group or a criminal association;
- where there are conditions and grounds to release the suspect from criminal liability;
- where the pre-trial investigation has been carried out for too long.
In the cases laid down in sect. 212 subs. 3-9 CCP, the prosecutor’s decision to suspend the pre-trial investigation must be approved by the pre-trial judge. Moreover, a pre-trial judge has also the right, established by law, to terminate the pre-trial investigation if he, whilst analysing the complaint received, decides that the investigation has been carried out for too long. Besides, legislation provides that procedural acts of a prosecutor may be appealed against to a superior prosecutor and the court, which are entitled to revoke such decisions. Thus, certain protectors of the legitimacy of the actions of the prosecutor, who is the main head of the criminal proceedings, appear, which, by indicating particular subjects that are responsible for the control of the prosecutor’s activities, help to exercise the main principles of the criminal proceedings: while protecting the rights and freedoms of a person as well as the interests of the society and the state, the criminal proceedings aim at a speedy and detailed detection of criminal acts and a proper application of the law in order to ensure that any person who has committed a criminal act is given a fair punishment and that no innocent person is convicted.
The Relation between the Public Prosecutor and the Minister of Justice
The Prosecutor’s Office is an independent national institution, which performs the functions provided for in the Constitution, the Law on the Prosecutor’s Office, international treaties as well as other legislation. The Law on the Prosecutor’s Office (in force since May 1, 2003) establishes the structure (organisation), status, functions, basic principles and control of activities, and basic principles of work organisation of the prosecutor’s office, as well as the status of the prosecutors, their competence, rights and duties, course of service, conditions for providing them with incentives and their official liability conditions, social guarantees, and so forth.
The organisation of the prosecution service
All prosecutors are organised into a centralised hierarchical system of the prosecutor’s office, consisting of the Prosecutor General’s Office and territorial offices: five regional prosecutor’s offices and 51 district prosecutor’s office. The Prosecutor General is appointed for a term of seven years by the President with the approval of the Seimas (Parliament). Deputies of the Prosecutor General are appointed for a term of seven years by the President upon the nomination of the Prosecutor General. The posts of the Prosecutor General and his deputy may be filled by a person who is 35 years old and over, is of high moral character, has a good command of the Lithuanian language, is a national, has an MA in law or a professional lawyer qualification degree, has a record of at least ten years of work as a prosecutor or at least ten years standing as a judge or a record of at least ten years of service as a university law professor with a Doctor or Habilitation Doctor in Social Sciences (Law) degree.
The Prosecutor General’s Office consists of departments and divisions headed by chief prosecutors. It presides over the territorial prosecutor’s offices and controls their activities. Chief prosecutors head the regional and district prosecutor’s offices.
There are no specialised prosecutor’s offices. However, in the Prosecutor General’s Office and five regional prosecutor’s offices organised crime and corruption investigation subdivisions have been set up. These subdivisions specialise in the investigation of the above type of crimes. In addition, individual prosecutors may specialise in investigation, organisation and supervision of investigations in the sphere of financial crimes, crimes against intellectual property law, juvenile justice, and so forth.
The Prosecutor General heads the Prosecutor General’s Office. His main task is to organise the work of the prosecutor’s office to ensure that the prosecutor’s office is able to perform all the prosecutor’s functions determined by law, to ensure justice, and to assist the court in its administration.
Orders, decrees, instructions, and other regulations of the Prosecutor General, which establish the procedure for the organisation of procedural activity and service, are binding for prosecutors.
Tasks and duties of the Prosecutor General
The Prosecutor General:
- establishes and reorganises the territorial prosecutor’s offices, establishes their status, structure and activity area;
- controls the economic and financial activities of the Prosecutor General’s Office and the territorial prosecutor’s offices;
- determines the competence of the Prosecutor General’s Office, territorial prosecutor’s offices, Prosecutor General and his deputies, prosecutors, commissions, by approving the Competence Regulations by his order;
- upon the motion of the Selection Commission, appoints the prosecutors, including the chiefs of the departments and divisions of the Prosecutor General’s Office and of territorial prosecutor’s offices, to their office; admits persons to service as public servants and employees;
- acts as the chairman of an advisory body, College of Prosecutors, which he himself forms from the deputies of the Prosecutor General and regional chief prosecutors;
- forms the following commissions that assist him in his presiding role:
• the Selection Commission – for the selection of candidates for the positions at the prosecutor’s office;
• the Examination Commission – for assessing the candidate prosecutors’ professional qualification;
• the Ethics Commission – for the investigation and evaluation of violations of the Prosecutors’ Ethics Code;
• the Performance Evaluation Commission – for the evaluation of the prosecutors’ performance, their qualification and suitability for office
- Pursuant to the conclusions of the Performance Evaluation Commission, awards the prosecutors qualification ranks after the evaluation of their performance, and in accordance with the procedure of incentives. The Law on the Prosecutor’s Office stipulates that the prosecutors shall be awarded the following qualification ranks denoting their qualification or position:
• junior justice adviser;
• justice adviser;
• senior justice adviser;
• chief justice adviser;
• state justice adviser;
• chief state justice adviser.
The Prosecutor General shall be awarded the qualification rank of the chief state justice adviser, whereas the Deputy Prosecutor General shall be awarded the qualification rank of the state justice adviser by the President of the Republic when appointing them to respective positions.
The Prosecutor General:
- suspends the immunity of the Deputy Prosecutor General and commences a pre-trial investigation with regard to any criminal act committed by him, having notified the President of the Republic thereof;
- suspends the immunity of a prosecutor and commences a pre-trial investigation with regard to a criminal act committed by him;
- suspends the immunity of a prosecutor by virtue of the violation of administrative law;
- orders to carry out an official inspection with regard to a prosecutor’s misconduct in office or action discrediting the name of a prosecutor;
- provides information about the activities of the prosecutor’s office to the Government and society at large.
- submits conclusions and proposals as to the application of laws and other regulatory enactments, as well as the preparation of their drafts, to the President of the Republic, the Seimas and the Government.
Tasks and duties of the prosecutor
Sect. 118 Constitution establishes the main functions of the prosecutor, namely: ‘Public prosecutors shall prosecute criminal cases on behalf of the State, shall carry out criminal prosecutions, and shall supervise the activities of the interrogative bodies’. Furthermore, the Law on the Prosecutor’s Office provides a relatively thorough account of the main functions and powers of the prosecutor’s office. According to this provision, the prosecutor’s office shall:
- organise and direct pre-trial investigation;
- conduct pre-trial investigation or individual actions of pre-trial investigation;
- control the activities of pre-trial investigation officers in criminal proceedings;
- prosecute on behalf of the State;
- supervise the submission of the judgments for execution and the execution thereof;
- co-ordinate the actions of the pre-trial investigation bodies pertaining to investigation of criminal acts;
- protect the public interest;
- examine, within its competence, petitions, applications and complaints submitted by individuals;
- take part in the drawing up and implementation of national and international criminal acts prevention programmes;
- take part in the legislative process; and
- fulfil other functions prescribed by law; for instance, supervise the way central or competent institutions co-operate with institutions of foreign countries and international organisations on mutual assistance in criminal cases concerning extradition and the European Arrest Warrant.
The provisions of the CCP regulate the status of a prosecutor during criminal proceedings. Lawful demands and decisions of the prosecutor shall be binding on all state and municipal institutions and establishments, their officials, public servants and employees, natural and legal persons and must be complied with within the entire territory. Failure to comply with the demands and decisions of the prosecutor shall make the abovelisted entities liable under law.
Accountability
According to the legislation, the prosecutor’s office is directly accountable to the President and Seimas. The Prosecutor General shall be accountable for the activities of the prosecutor’s office to the President and the Seimas once a year. None of the other institutions of the State shall be politically or in any other way accountable for the policy of the prosecutor’s office. Seimas, having evaluated the account of the activities of the prosecutor’s office, the current state of crime in the country and any other facts important for society, shall establish the priorities in the activities of the prosecutor’s office, taking into account which criminal acts are deemed to be important issues for society at that time in respect of which it is crucial to take immediate measures and to implement them decisively.
The CCP establishes a safeguard mechanism with regard to the legitimacy of individual decisions under which individuals become subject to criminal prosecution. According to national legislation, the actions and decisions of a prosecutor can be appealed against in accordance with the procedure established by law. Procedural decisions in a criminal case are made independently and individually, and therefore, cannot be considered to be an issue of parliamentary assessment.
By analysing the annual account of the Prosecutor General’s Office’s work against indicated priorities, and then evaluating what has been found, Seimas exercises parliamentary control over the activities of the prosecutor’s office. However, by evaluating and assessing prosecution of criminal acts which have been given priority, Seimas does not imply that the prosecutor is entitled not to investigate other offences. Further to the CCP (sect. 2), whenever elements of a criminal act are discovered, prosecutors or pre-trial investigation institutions are obliged, within the limits of their competences, to take all measures provided by law to conduct an investigation, and to establish that a criminal act has been committed.
On the other hand, the CCP lies down a number of criminal acts in respect of which criminal proceedings can be instituted only when a claim of the victim or a statement of his legal representative is submitted (for instance, restriction of the freedom of a person’s actions, sexual harassment, slander, abuse, and so forth). Pre-trial investigation is not conducted in the aforementioned cases; the aggrieved person applies to the court directly, besides, the prosecutor does not participate in the court hearings of such cases. The prosecutor has a right to institute criminal proceedings only in cases when such criminal acts are considered to be of great importance to society, regardless of the fact whether a claim of the victim or a statement of his legal representative has been submitted or not.
The Prosecutor General approves of guidelines, that is to say documents containing information on the organisation of the activities of criminal proceedings. In these guidelines is laid down when a specific procedure must be followed while conducting criminal proceedings, for instance, Guidelines on drawing up a bill of indictment, Guidelines on disposal of the case by issuing a penal order, Guidelines on granting the non-disclosure of identity to a witness or a victim and on the procedural drawing up of the decision on this issue, and so forth. In addition, the Prosecutor General, together with the Ministry of Justice, approves of the legal acts relating to the application of the provisions of criminal proceedings. These legal acts may be named ‘Rules’, ‘System’, ‘Examples’ or ‘Guidelines’, examples are the registration system of the commencement of pre-trial investigation, procedural documents (Forms), Guidelines on the control procedure of compliance with the conditions determined by the measures of constraint (except for arrest), and so forth. The Prosecutor General’s Guidelines and other regulatory enactments, for example, the resolutions of the Supreme Court Senate, the consultations of the Supreme Court, which make uniform practice of the pre-trial investigation, public prosecution and implementation of sentences, are binding on all the prosecutors and pre-trial investigation officers.
Non-commencement or suspension of criminal prosecution
While fulfilling his functions, the prosecutor acts independently and complies with the provisions of the Constitution and other legal acts. He is obliged to prosecute every crime that was brought to his notice. However, sect. 3 CCP establishes concrete cases when pre-trial investigation (as well as criminal prosecution) shall not be commenced. These cases are as follows:
- where there are no elements of a crime in the act that has been committed;
- where the statutory period of limitations for criminal liability has expired;
- where a criminal act has been committed by a person who, under international law, has immunity from criminal jurisdiction, or where there is no authorisation of a competent body for prosecuting the person, when such an authorisation is obligatory under the law;
- where, at the moment the criminal act took place, the person, who has committed the said act, had not yet reached the age from which he is held liable under criminal law;
- where the person who is accused of committing a criminal act reconciles with a victim, in cases concerning where criminal proceedings are commenced only when a claim of the victim or a statement of his legal representative has been submitted;
- in the absence of the victim’s complaint, or a statement of his lawful representative, or the prosecutor’s demand to institute the proceedings, when such proceedings may be commenced only pursuant to the victim’s complaint, an application of his lawful representative or the prosecutor’s demand;
- where the person who has committed a criminal act has died;
- where, with regard to the same offence, the court’s judgment of conviction, or the court’s ruling/prosecutor’s decision to terminate the proceedings have become effective;
- where there are certain circumstances that remove criminal liability (for instance, selfdefence, necessity, scientific experiment, and so forth).
Neither this nor the following list of the grounds for suspension of the criminal prosecution is a discretionary decision of the prosecutor. The law of criminal procedure imperatively specifies particular cases when the prosecutor is obliged to refuse to conduct criminal prosecution, and, in case it has been commenced, to terminate criminal prosecution. Whenever a prosecutor decides not to prosecute (by refusing to commence it or, in a case under investigation, terminating it), he is obliged to substantiate it by drafting a reasoned decision. If the pre-trial investigation has already been carried out, the criminal case is handed over to the court. The laws forbid settling the criminal case out of court or under any other grounds than those established in the aforementioned lists.
The legislation provides that not only the prosecutor but also the head of the pre-trial investigation institution, or a person authorised by the latter, may decide to commence pre-trial investigation. Therefore, the prosecutor cannot consider himself the monopolist at the pre-trial investigation stage. The role of the prosecutor at this stage ought to be defined in another way because the law states that he organises and supervises the pre-trial investigation. Moreover, the law of criminal proceedings grants a right to the prosecutor to perform all the pre-trial investigation or separate actions thereof individually, obliges him to control the pre-trial investigation when it is carried out by the pre-trial investigation officers, enables him to give obligatory instructions to the pre-trial investigation officers and to cancel their illegitimate or ungrounded procedural decisions. Only the prosecutor is entitled to address the pre-trial judge with a request for imposing arrest upon the suspect, for carrying out a search, seizure, seizure of postal consignments, and for performing other actions falling within the competence of the said judge. The prosecutor is the only person who is empowered to decide to terminate a pre-trial investigation, to resume the suspended pre-trial investigation, or to conclude the pre-trial investigation by drawing a bill of indictment. Without any doubt, the legislator, having given such powers to the prosecutor, has assigned him the role of the head and the organiser of criminal prosecution.
By obliging the prosecutor to decide on the suspension of the criminal prosecution, the CCP (sect. 212) provides an exhaustive list of the grounds on which criminal prosecution shall be suspended:
- where, during pre-trial investigation, certain circumstances are discovered, in respect of which the criminal proceedings may not be commenced (those circumstances are listed above);
- where insufficient information proving the suspect's culpability in committing a criminal act is gathered during the pre-trial investigation;
- where it is established that the person and the act committed by him have ceased to be dangerous owing to the change of the circumstances;
- where it is established that the criminal act is no longer dangerous because of its insignificance;
- where the suspect and the victim reconcile under the cases established by the Penal Code (hereafter PC);
- where the suspect is surrendered under bail in particular cases established by the PC;
- where the suspect helps to disclose criminal acts committed by an organised group or a criminal association;
- where there are conditions and grounds to release the suspect from criminal liability;
- where the pre-trial investigation has been carried out for too long.
In the cases laid down in sect. 212 subs. 3-9 CCP, the prosecutor’s decision to suspend the pre-trial investigation must be approved by the pre-trial judge. Moreover, a pre-trial judge has also the right, established by law, to terminate the pre-trial investigation if he, whilst analysing the complaint received, decides that the investigation has been carried out for too long. Besides, legislation provides that procedural acts of a prosecutor may be appealed against to a superior prosecutor and the court, which are entitled to revoke such decisions. Thus, certain protectors of the legitimacy of the actions of the prosecutor, who is the main head of the criminal proceedings, appear, which, by indicating particular subjects that are responsible for the control of the prosecutor’s activities, help to exercise the main principles of the criminal proceedings: while protecting the rights and freedoms of a person as well as the interests of the society and the state, the criminal proceedings aim at a speedy and detailed detection of criminal acts and a proper application of the law in order to ensure that any person who has committed a criminal act is given a fair punishment and that no innocent person is convicted.
