The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
Let it be remembered that the prosecution initiates criminal prosecution proceedings on the basis of the principle of appropriateness of legal action. The procedures of direct summons and referral to the investigating judge must be differentiated between.
In cases which have been referred to the investigating judge, criminal prosecution proceedings are initiated by the charge in a case that the state prosecutor refers to the investigating judge. It is not up to the prosecution to decide the outcome of the proceedings after the investigation has been closed. The council chamber, as the investigating jurisdiction, takes a writ of nolle prosequi to take legal action or refers the accused to the tribunal entertaining jurisdiction. In the order of reference, the council chamber carries out a qualification of the facts. It is also entitled to admit in favour of the accused any extenuating circumstances and decriminalise a crime, that is to say, bring the accused for facts qualified as crimes before the chamber for offences (chambre correctionnelle) of the district court.
In the event of direct summons of the accused before the criminal judge, criminal prosecution proceedings are initiated by this summons issued by the state prosecutor. Then, criminal prosecution proceedings are referred to the criminal judge and the prosecution can no longer stop the proceedings or withdraw them. In other words, if the prosecution has control over the initiation of legal proceedings, the outcome of criminal prosecution proceedings, once initiated, is outside of his control.
In the criminal system in Luxembourg, criminal prosecution is subject to a physical fact likely to receive a legal qualification. The state prosecutor, by referring the case to the investigating judge or by summoning the accused directly before the tribunal, delivers a legal description of the facts. This description is compulsory and must be carried out in accordance with the law. In other words, the prosecutor may not, by virtue of the opportunity to take legal action, knowingly accept a less serious qualification by abandoning the more serious qualification. This first qualification by the prosecutor is important to the extent that it touches on the obligation to refer, or not to refer, the case to the investigating judge, and to the extent that it determines, a priori, the competent criminal judge. It is, however, provisional and does not bind the judge. The investigating judge referred to in rem may carry out a re-qualification of the facts which have been referred to him. In the settlement procedure the council chamber has the same prerogative of managing this qualification. The final, decisive, qualification concerns the attributions of the tribunal which has been referred the criminal acts by the direct summons of the state prosecutor, indeed the victim or by the council chamber’s order of reference. The principle of a referral in rem implies that the prosecutor, once criminal prosecution proceedings have been initiated, can no longer, whether this be at the stage of cross-examination before the investigating judge or during proceedings before the criminal judge, change the scope of his legal action by changing the charge.
The CCP determines, in detail, the course of the proceedings for the hearing. Its rules are applied in tribunals, police magistrate courts, chamber for offences (chambre correctionnelle) and criminal chamber (chambre criminelle) of the district court, chamber for offences and criminal chamber of the appeal court. Moreover, provisions relevant to the Convention for the protection of human rights and fundamental freedoms of November 4, 1950 must be taken into account, in particular provisions on the rights of the defendant, which the judges in Luxembourg apply as rules with direct effect having supremacy over national law.
The text of the CCP does not make a distinction between cases which are subject to a cross-examination procedure by the investigating judge and those subject to a direct summons. It could be stated that the investigation of the judge into the hearing is less important for cases which have already been investigated by an investigating judge. In practice, however, no difference is noted as regards the scope of the investigation into the hearing, between cases which have been directly referred before the tribunal and those subject to an investigation by the investigating judge.
The Constitution and the CCP establish the principle of the public nature of the hearing, non-observance of which is sanctioned on grounds for annulment (Sect. 88 Constitution). The strict order of formalities provided for in the CCP is no longer respected in practice (Sect. 153 CCP). The president of the jurisdiction calls for the accused and checks his identity. He reminds him of the facts which he is accused of, the accused has the right to explain himself, any witnesses are heard. The prosecution, the accused, or private parties, have the right to call witnesses and to have them questioned by the president of the jurisdiction. Private parties, if there are any, file their submissions, the accused and/or his lawyer give their defense, the prosecution recites his oral charge and the accused has the right of reply.
The procedural system in Luxembourg does not have the ‘cross-examination’ tool of Anglo-Saxon origin. It is up to the president of the jurisdiction to question the witness and if the parties wish to ask any questions, they must put them forward to the president. In practice, however, under the influence of the jurisprudence of the European court of human rights, a tendency towards a kind of cross-examination system can be noted in some cases, even if this mechanism is not without problems with regard to the position and rights of witnesses.
In its final charge, the prosecution summarises the case, goes over the evidence for charging the accused, and makes a statement on the sentence to be delivered. However, as has already been stated, the representative from the prosecution benefits from a total freedom in delivering a final statement on the charge. If he has received from his hierarchical superiors, indeed from the Ministry of Justice, a formal order for criminal prosecution, he may at this stage, adopt a different position. In the same way, the initiation of prosecution proceedings does not compel the representative from the prosecution to maintain the position that he had taken: he may rely on the judges’ wisdom as to the merits of the legal proceedings, state the invalidity of the proceedings, ask the judge to note the statutory limitations of criminal prosecution, and even ask for the acquittal of the accused.
The tribunal entertaining jurisdiction which has been called upon to rule on the facts in relation to the accused as summoned, decides in all sovereignty on the guilt of the accused and on the punishment, without being bound by the prosecution’s submissions.
It is traditionally recognised that members of the prosecution, in their task of initiating and carrying out criminal prosecution proceedings, cannot be individually held responsible. They benefit from a position of unaccountability which notably prevents any claims for damages on the basis of a miscarriage of justice caused by legal decisions of members of the public prosecutor’s department.
The Role of the Public Prosecutor in Court
Let it be remembered that the prosecution initiates criminal prosecution proceedings on the basis of the principle of appropriateness of legal action. The procedures of direct summons and referral to the investigating judge must be differentiated between.
In cases which have been referred to the investigating judge, criminal prosecution proceedings are initiated by the charge in a case that the state prosecutor refers to the investigating judge. It is not up to the prosecution to decide the outcome of the proceedings after the investigation has been closed. The council chamber, as the investigating jurisdiction, takes a writ of nolle prosequi to take legal action or refers the accused to the tribunal entertaining jurisdiction. In the order of reference, the council chamber carries out a qualification of the facts. It is also entitled to admit in favour of the accused any extenuating circumstances and decriminalise a crime, that is to say, bring the accused for facts qualified as crimes before the chamber for offences (chambre correctionnelle) of the district court.
In the event of direct summons of the accused before the criminal judge, criminal prosecution proceedings are initiated by this summons issued by the state prosecutor. Then, criminal prosecution proceedings are referred to the criminal judge and the prosecution can no longer stop the proceedings or withdraw them. In other words, if the prosecution has control over the initiation of legal proceedings, the outcome of criminal prosecution proceedings, once initiated, is outside of his control.
In the criminal system in Luxembourg, criminal prosecution is subject to a physical fact likely to receive a legal qualification. The state prosecutor, by referring the case to the investigating judge or by summoning the accused directly before the tribunal, delivers a legal description of the facts. This description is compulsory and must be carried out in accordance with the law. In other words, the prosecutor may not, by virtue of the opportunity to take legal action, knowingly accept a less serious qualification by abandoning the more serious qualification. This first qualification by the prosecutor is important to the extent that it touches on the obligation to refer, or not to refer, the case to the investigating judge, and to the extent that it determines, a priori, the competent criminal judge. It is, however, provisional and does not bind the judge. The investigating judge referred to in rem may carry out a re-qualification of the facts which have been referred to him. In the settlement procedure the council chamber has the same prerogative of managing this qualification. The final, decisive, qualification concerns the attributions of the tribunal which has been referred the criminal acts by the direct summons of the state prosecutor, indeed the victim or by the council chamber’s order of reference. The principle of a referral in rem implies that the prosecutor, once criminal prosecution proceedings have been initiated, can no longer, whether this be at the stage of cross-examination before the investigating judge or during proceedings before the criminal judge, change the scope of his legal action by changing the charge.
The CCP determines, in detail, the course of the proceedings for the hearing. Its rules are applied in tribunals, police magistrate courts, chamber for offences (chambre correctionnelle) and criminal chamber (chambre criminelle) of the district court, chamber for offences and criminal chamber of the appeal court. Moreover, provisions relevant to the Convention for the protection of human rights and fundamental freedoms of November 4, 1950 must be taken into account, in particular provisions on the rights of the defendant, which the judges in Luxembourg apply as rules with direct effect having supremacy over national law.
The text of the CCP does not make a distinction between cases which are subject to a cross-examination procedure by the investigating judge and those subject to a direct summons. It could be stated that the investigation of the judge into the hearing is less important for cases which have already been investigated by an investigating judge. In practice, however, no difference is noted as regards the scope of the investigation into the hearing, between cases which have been directly referred before the tribunal and those subject to an investigation by the investigating judge.
The Constitution and the CCP establish the principle of the public nature of the hearing, non-observance of which is sanctioned on grounds for annulment (Sect. 88 Constitution). The strict order of formalities provided for in the CCP is no longer respected in practice (Sect. 153 CCP). The president of the jurisdiction calls for the accused and checks his identity. He reminds him of the facts which he is accused of, the accused has the right to explain himself, any witnesses are heard. The prosecution, the accused, or private parties, have the right to call witnesses and to have them questioned by the president of the jurisdiction. Private parties, if there are any, file their submissions, the accused and/or his lawyer give their defense, the prosecution recites his oral charge and the accused has the right of reply.
The procedural system in Luxembourg does not have the ‘cross-examination’ tool of Anglo-Saxon origin. It is up to the president of the jurisdiction to question the witness and if the parties wish to ask any questions, they must put them forward to the president. In practice, however, under the influence of the jurisprudence of the European court of human rights, a tendency towards a kind of cross-examination system can be noted in some cases, even if this mechanism is not without problems with regard to the position and rights of witnesses.
In its final charge, the prosecution summarises the case, goes over the evidence for charging the accused, and makes a statement on the sentence to be delivered. However, as has already been stated, the representative from the prosecution benefits from a total freedom in delivering a final statement on the charge. If he has received from his hierarchical superiors, indeed from the Ministry of Justice, a formal order for criminal prosecution, he may at this stage, adopt a different position. In the same way, the initiation of prosecution proceedings does not compel the representative from the prosecution to maintain the position that he had taken: he may rely on the judges’ wisdom as to the merits of the legal proceedings, state the invalidity of the proceedings, ask the judge to note the statutory limitations of criminal prosecution, and even ask for the acquittal of the accused.
The tribunal entertaining jurisdiction which has been called upon to rule on the facts in relation to the accused as summoned, decides in all sovereignty on the guilt of the accused and on the punishment, without being bound by the prosecution’s submissions.
It is traditionally recognised that members of the prosecution, in their task of initiating and carrying out criminal prosecution proceedings, cannot be individually held responsible. They benefit from a position of unaccountability which notably prevents any claims for damages on the basis of a miscarriage of justice caused by legal decisions of members of the public prosecutor’s department.
