The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
Indictment
Where the prosecutor is satisfied that sufficient information has been gathered during the pre-trial investigation in evidence of the culpability of the suspect for committing a criminal act, he drafts the indictment (sect. 218 CCP) which is addressed to the court. The indictment should state the exact data about the suspect, a brief description of the criminal act committed by him, and the basic information on which the charges are based. In addition, the indictment shall provide the prosecutor’s position in the criminal procedure. Following the principle of rapidity of the proceedings, the prosecutor is obliged to transfer a criminal case to the court as soon as the indictment is drafted. The prosecutor has to hand over only these parts of material which may be necessary for making a procedural decision in the court.
Acting as an organiser and leader of the pre-trial investigation, as provided in the CCP, before the indictment is drafted, the prosecutor may direct the pre-trial investigation officer to change the suspicions brought and charge the suspect with both a less serious offence and a more serious crime. The prosecutor may also file such a charge by himself. Where there are enough grounds to charge the suspect with a more serious crime but the prosecutor for some reasons denies aggravating the late charges, the parties to the procedure may appeal against his actions to the superior prosecutor or the court.
The prosecutor can initiate a release from criminal liability for a guilty person who has participated in the activity of an organised group or criminal association, but then made a confession to a law enforcement authority and provided valuable information allowing to disclose the criminal acts committed by the members of the organised group or criminal association (sect. 212 subs. 7 CCP). In this case, the pre-trial investigation must be suspended by a decision of the prosecutor which must be confirmed by the pre-trial judge. The exemption from criminal liability cannot be applied to persons who participated in a premeditated murder, who have already been released from criminal liability on the same grounds, or who are organisers or leaders of the organised group or criminal association (sect. 39 PC).
Following sect. 213 CCP, the prosecutor may discontinue the pre-trial inves-tigation of misdemeanours or minor offences, where the person is suspected of having committed several criminal acts, one or several of which are misdemeanours or minor offences, while others are serious or very serious offences. Such a decision may be made by the prosecutor where it is believed that, in this event, the proceedings involving serious or very serious criminal offences shall be conducted speedier. According to the provisions of the PC, when a person is punished for committing a misdemeanour or minor offence as well as for committing a serious or very serious offence, a special provision in law should be applied to him. This provision entails that, in practice, the decision on the final punishment shall not be influenced by any other punishments imposed for committing of the misdemeanour or minor offence. In this case, a punishment imposed on a person for committing a serious or very serious crime becomes a final punishment. However, it should be noted that the prosecutor is entitled to make this kind of decision, but is not obliged to do so. The pre-trial investigation of misdemeanours and minor criminal offences may not be discontinued in any case if these offences caused material damage and if an action damages has been instituted.
When proceedings in respect of the commission of serious and very serious crime are suspended or terminated by a rendered judgment of acquittal, a prosecutor may resume the suspended pre-trial investigation in respect of misdemeanour or minor offence because otherwise no punishment would be imposed on person for the criminal acts committed by him. This would not be justifiable from the point of view of combating crime. Certainly, this resumption of the pre-trial investigation is possible if the time limit has not expired only.
The provisions of the CCP and the Law on the Prosecutor’s Office also regulate the prosecutor’s functions, while he acts as a public prosecutor in court, and provide him a relatively wide range of powers. The prosecutor is independent in court and may, with regard to the circumstances of the case, address the court with a proposal to change the charges brought, to permit to provide additional data on the case, or to allow to hand over the case to the prosecutor to supplement the pre-trial investigation at his own discretion. The court may satisfy the prosecutor’s requests, however, it is not obliged to do that, thus the prosecutor’s rights are restricted in such cases.
The limits of the trial investigation in respect of a particular case are determined in the prosecutor’s bill of indictment and the judge’s order to transfer the case to the court. Following the laws, the court shall not hear a criminal case and find persons guilty of criminal acts in respect of which the criminal case has not been transferred for the trial hearings. Even so, the court of law is obliged by law to thoroughly investigate the circumstances of the case and duly apply relevant law so that the person who has committed a criminal act will be justly punished and innocent people will not be convicted. In other words, the court must respond to the following cases: if the prosecutor fails to explain some circumstances which are later determined at the trial, or he ungrounded recognises certain circumstances as established ones, imprecisely formulates the charges and incorrectly defines the accused person’s actions under the criminal laws.
Where, during the hearing, it is found that the accused might have committed another criminal act which was not indicated in the bill of indictment, the court shall duly inform the prosecutor by a reasoned order (sect. 257 CCP). That is, the court’s order must include certain proofs substantiating the court’s statement that the accused might have committed another criminal act. However, the court shall not take the initiative to aggravate the position of the accused by defining his criminal act as a more serious offence or a misdemeanour.
Pursuant to the provisions of the Code of Criminal Procedure, the court’s duties are not restricted to the limits set by the bill of indictment only in the case where the criminal act committed by the accused is to be defined under a less severe criminal law. In this particular case, the court may take the initiative to mitigate the charges but the reasons for such decision must be specified in the recital of the judgment of conviction.
Accordingly to sect. 256 CCP, the prosecutor, who prosecutes criminal cases on behalf of the State, may apply to the court with a written request to redefine the accused person’s criminal act. This provision of the code explicitly stipulates that the court be addressed in writing if the criminal act is redefined as a more serious offence or misdemeanour, or the factual circumstances stated in the bill of indictment are fundamentally altered. Where, upon the prosecutor’s request, the accused person’s criminal act is redefined as a less serious offence or misdemeanour, it is not obligatory for the prosecutor to address the court in written form. Still, the judicial practice of submitting such requests in written form has recently become widespread. It should be noted that the victim may also apply to the court with a request to mitigate or aggravate the position of the accused.
Upon receiving the request for redefining the charges, the court delivers the transcripts of this request to the accused, his defence counsel and other participants in the hearing of the case. The accused and his defence counsel are informed of their right to request for the adjournment of the hearing to plan the appropriate defence against the redefined charges. Having granted such a request, the court decides upon the adjournment period.
The court trial
The trial commences by the bill of indictment being read out. The bill of indictment shall be read out by the prosecutor (sect. 271 subs. 1 CCP).
According to sect. 272 CCP, the examination of the accused shall start with the proposal of the presiding judge to give testimony about the accusations and the circumstances of the case that are known to the accused. The accused is entitled to give testimony but not obliged to do it. The law does not provide for liability for refusing to give testimony or for giving false testimony. The accused person’s refusal to give testimony, withholding substantial information, which proves to be beneficial for him, in the course of examination, may not be considered to be the acceptance of the charges, nor have any other negative consequences for the accused. After the accused finishes his unreserved speech, the participants in the hearing may pose questions to him.
Before the witness gives testimony, the presiding judge establishes his personal identity, ascertains whether or not there are any circumstances preventing him from taking an oath, thereafter explains to him his duty to give a true account of all the matters relating to the case that are in his knowledge and warns him of the criminal liability for refusal or avoidance to give testi-mony and for giving false testimony. The witness takes the solemn oath to testify to the truth, the whole truth, and nothing but the truth, by reading aloud the text which is given to him (sect. 277 CCP). Persons who are under the age of sixteen and close relatives of the accused shall not be sworn in the court.
Witnesses shall be examined individually, with the witnesses who have not yet been questioned absent from the courtroom. The presiding judge shall ascertain the relationship between the witness, the accused and the victim, and suggest that the witness inform the court of all the matters relating to the case that are in his knowledge.
Since the testimony of the victim is an important source of evidential information, the facts presented by him may be of great significance when determining the circumstances of a criminal act. Thus, pursuant to the provisions of the CCP, the victim shall be obliged to give testimony in the court of law and he shall be questioned in compliance with all regulations applicable to the questioning of witnesses. The only difference is that the victim is present in the courtroom during all the hearing of the case.
Sect. 275 CCP determines that the prosecutor, the victim, the plaintiff, the accused in a civil action and their representatives, the defence counsel, the legal representative of the accused and the accused shall be entitled to pose questions to the accused persons, witnesses, experts, and specialists under examination in the court. If the court permits, the expert and the specialist may pose questions to the accused persons, the victims and the witnesses. It is forbidden to pose questions that allude to the answer. The judge (court) has the right to pose questions at any stage of the examination.
Questions to the victims and witnesses who are under eighteen years of age shall be posed only through the presiding judge.
The CCP does not provide for cross examination as it is perceived in the classical sense. The above mentioned participants in the proceedings shall pose questions to the persons under examination in turn; they shall not raise objections against each other’s questions. Only the court shall be entitled to reject the questions that are unrelated to the case.
The last person to pose questions to the accused, the victim, the witness is the defence counsel who, being aware of all the prior questions as well as the answers of the persons questioned, and having accordingly estimated the examination results, may pose such questions which could best be used in the interests of defence. Even so, when the defence counsel has posed his questions, if the presiding judge so permits, the prosecutor is actually given an opportunity to pose particularising, leading, or verifying questions once more.
Closing speech
After the termination of the trial proceedings, the court shall hear the closing speeches. The closing speeches shall comprise the statements of the prosecutor, the victim or his representative, the plaintiff and the accused in a civil action or their representatives, the defence counsel or the accused, if he has waived his right to counsel, made during the trial (sect. 293 CCP). The prosecutor shall be the first person to make a closing speech, which is the most important element of the prosecution on behalf of the State. Its content and form, the arrangement and analysis of the information supplied are very much dependent upon the characteristics of an individual criminal case, the kind of evidence and range thereof, the complexity of the circumstances of an offence, as well as upon the personality of the accused. The prosecutor’s speech consists of the following parts: introduction, account of the circumstances in which the criminal act was committed, analysis and evaluation of the evidence obtained in the case and examined by the court, substantiation of defining the criminal act under a particular law, characterisation of the accused, recommendations in regard to specific punishment to be imposed for each criminal act, the final combined sentence to be imposed upon the accused, and the disposal of a civil action.
When, having assessed the evidence examined at the trial, the prosecutor withdraws the charges, he may not refuse to make a closing speech, and is obliged to state the reasons for the withdrawal of the charges in his speech. In such a case, the prosecutor may propose to acquit the defendant, or to terminate the case instituted against him.
Neither the prosecutor’s proposal to acquit the defendant or terminate the case instituted against him, nor the way of defining the offences of the defendant under particular laws, types of penalties and the degree of their severity, are binding on the court. Such position is firmly entrenched both in the Constitution and in the CCP wherein the following principle is established: the administration of justice lies within an exclusive competence of the court. That is, only the court, having handled the case and having impartially examined all the circumstances of the case, may render the final decision in the proceedings.
The Role of the Public Prosecutor in Court
Indictment
Where the prosecutor is satisfied that sufficient information has been gathered during the pre-trial investigation in evidence of the culpability of the suspect for committing a criminal act, he drafts the indictment (sect. 218 CCP) which is addressed to the court. The indictment should state the exact data about the suspect, a brief description of the criminal act committed by him, and the basic information on which the charges are based. In addition, the indictment shall provide the prosecutor’s position in the criminal procedure. Following the principle of rapidity of the proceedings, the prosecutor is obliged to transfer a criminal case to the court as soon as the indictment is drafted. The prosecutor has to hand over only these parts of material which may be necessary for making a procedural decision in the court.
Acting as an organiser and leader of the pre-trial investigation, as provided in the CCP, before the indictment is drafted, the prosecutor may direct the pre-trial investigation officer to change the suspicions brought and charge the suspect with both a less serious offence and a more serious crime. The prosecutor may also file such a charge by himself. Where there are enough grounds to charge the suspect with a more serious crime but the prosecutor for some reasons denies aggravating the late charges, the parties to the procedure may appeal against his actions to the superior prosecutor or the court.
The prosecutor can initiate a release from criminal liability for a guilty person who has participated in the activity of an organised group or criminal association, but then made a confession to a law enforcement authority and provided valuable information allowing to disclose the criminal acts committed by the members of the organised group or criminal association (sect. 212 subs. 7 CCP). In this case, the pre-trial investigation must be suspended by a decision of the prosecutor which must be confirmed by the pre-trial judge. The exemption from criminal liability cannot be applied to persons who participated in a premeditated murder, who have already been released from criminal liability on the same grounds, or who are organisers or leaders of the organised group or criminal association (sect. 39 PC).
Following sect. 213 CCP, the prosecutor may discontinue the pre-trial inves-tigation of misdemeanours or minor offences, where the person is suspected of having committed several criminal acts, one or several of which are misdemeanours or minor offences, while others are serious or very serious offences. Such a decision may be made by the prosecutor where it is believed that, in this event, the proceedings involving serious or very serious criminal offences shall be conducted speedier. According to the provisions of the PC, when a person is punished for committing a misdemeanour or minor offence as well as for committing a serious or very serious offence, a special provision in law should be applied to him. This provision entails that, in practice, the decision on the final punishment shall not be influenced by any other punishments imposed for committing of the misdemeanour or minor offence. In this case, a punishment imposed on a person for committing a serious or very serious crime becomes a final punishment. However, it should be noted that the prosecutor is entitled to make this kind of decision, but is not obliged to do so. The pre-trial investigation of misdemeanours and minor criminal offences may not be discontinued in any case if these offences caused material damage and if an action damages has been instituted.
When proceedings in respect of the commission of serious and very serious crime are suspended or terminated by a rendered judgment of acquittal, a prosecutor may resume the suspended pre-trial investigation in respect of misdemeanour or minor offence because otherwise no punishment would be imposed on person for the criminal acts committed by him. This would not be justifiable from the point of view of combating crime. Certainly, this resumption of the pre-trial investigation is possible if the time limit has not expired only.
The provisions of the CCP and the Law on the Prosecutor’s Office also regulate the prosecutor’s functions, while he acts as a public prosecutor in court, and provide him a relatively wide range of powers. The prosecutor is independent in court and may, with regard to the circumstances of the case, address the court with a proposal to change the charges brought, to permit to provide additional data on the case, or to allow to hand over the case to the prosecutor to supplement the pre-trial investigation at his own discretion. The court may satisfy the prosecutor’s requests, however, it is not obliged to do that, thus the prosecutor’s rights are restricted in such cases.
The limits of the trial investigation in respect of a particular case are determined in the prosecutor’s bill of indictment and the judge’s order to transfer the case to the court. Following the laws, the court shall not hear a criminal case and find persons guilty of criminal acts in respect of which the criminal case has not been transferred for the trial hearings. Even so, the court of law is obliged by law to thoroughly investigate the circumstances of the case and duly apply relevant law so that the person who has committed a criminal act will be justly punished and innocent people will not be convicted. In other words, the court must respond to the following cases: if the prosecutor fails to explain some circumstances which are later determined at the trial, or he ungrounded recognises certain circumstances as established ones, imprecisely formulates the charges and incorrectly defines the accused person’s actions under the criminal laws.
Where, during the hearing, it is found that the accused might have committed another criminal act which was not indicated in the bill of indictment, the court shall duly inform the prosecutor by a reasoned order (sect. 257 CCP). That is, the court’s order must include certain proofs substantiating the court’s statement that the accused might have committed another criminal act. However, the court shall not take the initiative to aggravate the position of the accused by defining his criminal act as a more serious offence or a misdemeanour.
Pursuant to the provisions of the Code of Criminal Procedure, the court’s duties are not restricted to the limits set by the bill of indictment only in the case where the criminal act committed by the accused is to be defined under a less severe criminal law. In this particular case, the court may take the initiative to mitigate the charges but the reasons for such decision must be specified in the recital of the judgment of conviction.
Accordingly to sect. 256 CCP, the prosecutor, who prosecutes criminal cases on behalf of the State, may apply to the court with a written request to redefine the accused person’s criminal act. This provision of the code explicitly stipulates that the court be addressed in writing if the criminal act is redefined as a more serious offence or misdemeanour, or the factual circumstances stated in the bill of indictment are fundamentally altered. Where, upon the prosecutor’s request, the accused person’s criminal act is redefined as a less serious offence or misdemeanour, it is not obligatory for the prosecutor to address the court in written form. Still, the judicial practice of submitting such requests in written form has recently become widespread. It should be noted that the victim may also apply to the court with a request to mitigate or aggravate the position of the accused.
Upon receiving the request for redefining the charges, the court delivers the transcripts of this request to the accused, his defence counsel and other participants in the hearing of the case. The accused and his defence counsel are informed of their right to request for the adjournment of the hearing to plan the appropriate defence against the redefined charges. Having granted such a request, the court decides upon the adjournment period.
The court trial
The trial commences by the bill of indictment being read out. The bill of indictment shall be read out by the prosecutor (sect. 271 subs. 1 CCP).
According to sect. 272 CCP, the examination of the accused shall start with the proposal of the presiding judge to give testimony about the accusations and the circumstances of the case that are known to the accused. The accused is entitled to give testimony but not obliged to do it. The law does not provide for liability for refusing to give testimony or for giving false testimony. The accused person’s refusal to give testimony, withholding substantial information, which proves to be beneficial for him, in the course of examination, may not be considered to be the acceptance of the charges, nor have any other negative consequences for the accused. After the accused finishes his unreserved speech, the participants in the hearing may pose questions to him.
Before the witness gives testimony, the presiding judge establishes his personal identity, ascertains whether or not there are any circumstances preventing him from taking an oath, thereafter explains to him his duty to give a true account of all the matters relating to the case that are in his knowledge and warns him of the criminal liability for refusal or avoidance to give testi-mony and for giving false testimony. The witness takes the solemn oath to testify to the truth, the whole truth, and nothing but the truth, by reading aloud the text which is given to him (sect. 277 CCP). Persons who are under the age of sixteen and close relatives of the accused shall not be sworn in the court.
Witnesses shall be examined individually, with the witnesses who have not yet been questioned absent from the courtroom. The presiding judge shall ascertain the relationship between the witness, the accused and the victim, and suggest that the witness inform the court of all the matters relating to the case that are in his knowledge.
Since the testimony of the victim is an important source of evidential information, the facts presented by him may be of great significance when determining the circumstances of a criminal act. Thus, pursuant to the provisions of the CCP, the victim shall be obliged to give testimony in the court of law and he shall be questioned in compliance with all regulations applicable to the questioning of witnesses. The only difference is that the victim is present in the courtroom during all the hearing of the case.
Sect. 275 CCP determines that the prosecutor, the victim, the plaintiff, the accused in a civil action and their representatives, the defence counsel, the legal representative of the accused and the accused shall be entitled to pose questions to the accused persons, witnesses, experts, and specialists under examination in the court. If the court permits, the expert and the specialist may pose questions to the accused persons, the victims and the witnesses. It is forbidden to pose questions that allude to the answer. The judge (court) has the right to pose questions at any stage of the examination.
Questions to the victims and witnesses who are under eighteen years of age shall be posed only through the presiding judge.
The CCP does not provide for cross examination as it is perceived in the classical sense. The above mentioned participants in the proceedings shall pose questions to the persons under examination in turn; they shall not raise objections against each other’s questions. Only the court shall be entitled to reject the questions that are unrelated to the case.
The last person to pose questions to the accused, the victim, the witness is the defence counsel who, being aware of all the prior questions as well as the answers of the persons questioned, and having accordingly estimated the examination results, may pose such questions which could best be used in the interests of defence. Even so, when the defence counsel has posed his questions, if the presiding judge so permits, the prosecutor is actually given an opportunity to pose particularising, leading, or verifying questions once more.
Closing speech
After the termination of the trial proceedings, the court shall hear the closing speeches. The closing speeches shall comprise the statements of the prosecutor, the victim or his representative, the plaintiff and the accused in a civil action or their representatives, the defence counsel or the accused, if he has waived his right to counsel, made during the trial (sect. 293 CCP). The prosecutor shall be the first person to make a closing speech, which is the most important element of the prosecution on behalf of the State. Its content and form, the arrangement and analysis of the information supplied are very much dependent upon the characteristics of an individual criminal case, the kind of evidence and range thereof, the complexity of the circumstances of an offence, as well as upon the personality of the accused. The prosecutor’s speech consists of the following parts: introduction, account of the circumstances in which the criminal act was committed, analysis and evaluation of the evidence obtained in the case and examined by the court, substantiation of defining the criminal act under a particular law, characterisation of the accused, recommendations in regard to specific punishment to be imposed for each criminal act, the final combined sentence to be imposed upon the accused, and the disposal of a civil action.
When, having assessed the evidence examined at the trial, the prosecutor withdraws the charges, he may not refuse to make a closing speech, and is obliged to state the reasons for the withdrawal of the charges in his speech. In such a case, the prosecutor may propose to acquit the defendant, or to terminate the case instituted against him.
Neither the prosecutor’s proposal to acquit the defendant or terminate the case instituted against him, nor the way of defining the offences of the defendant under particular laws, types of penalties and the degree of their severity, are binding on the court. Such position is firmly entrenched both in the Constitution and in the CCP wherein the following principle is established: the administration of justice lies within an exclusive competence of the court. That is, only the court, having handled the case and having impartially examined all the circumstances of the case, may render the final decision in the proceedings.
