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 organization of public prosecution service
The public prosecution service is composed of the Prosecutor General, prosecutors of common and military units of the service subordinate to him, and prosecutors of the Institute of National Memory and a Commission of Prosecuting Crimes against the Polish Nation (sect. 1 PSA). The last body was established in 1998 and its duties focus on prosecuting certain crimes against nationals or Polish citizens of other nationalities committed in the period from September 1, 1939 till December 31, 1989. The head of the Commission is one of the Prosecutor General’s deputies.
The Prosecutor General is the highest authority in the service and the post is filled by the Minister of Justice (sect. 1 PSA). The Minister of Justice, as a member of the government, is accountable before the Parliament and he can be held liable for prosecution policy or even decisions in particular cases.
The Council of Prosecutors is a body attached to the Prosecutor General. The Council can express its opinions at its own initiative, or at the General Prosecutor’s request. The opinions can for example concern proposals for guidelines and instructions from the General Prosecutor, periodical assessments of the performance of the service, and training of the members of the service (sect. 24 PSA). It is regrettable that the Council’s competences and authority are far smaller than the competences of the National Council of Judiciary which consults also legislative proposals concerning judiciary.
The common units of the public prosecution service are divided into four levels:
- the National Office;
- 11 appellate offices;
- 44 regional offices; and
- 348 district offices.
The National Office of the Public Prosecution Service – the highest unit – is part of the Ministry of Justice. The head of unit is the National Prosecutor, which is one of the Prosecutor General’s deputies. His duties are prescribed by the Prosecutor General. The lower units are headed respectively by Appellate Prosecutors, Regional Prosecutors and District Prosecutors.
Despite the fact that there are also four levels of courts (district courts, regional courts, appellate courts and the Supreme Court), units of the public prosecution service are currently separated from them. It means for example, that a prosecutor from a district office can act before a regional court.
Prosecutors of common units are appointed by the Prosecutor General (sect. 11 PSA), not by the President like judges are. Some reformers propose to change that in order to strengthen the position of public prosecutor.
The organization and functioning of the service is governed by the following principles:
- hierarchical subordination: public prosecutors of lower level are subordinate to the public prosecutors of upper level;
- devolution: a higher public prosecutor can overtake any case and conduct it;
- substitution: a higher public prosecutor can order his dependent public prosecutors to carry out an activity which lies within his competence;
- uniformity: the service is a uniform body of the state and activities of its members are attributed to it. It also means, that if the law does not state otherwise, dividing the tasks of the service is its internal matter;
- indifference: generally public prosecutors can replace each other during the proceedings and all acts done by the previous public prosecutor are valid;
- centrality: prosecution service is managed centrally by the Prosecutor General, and other units are managed by their head prosecutors;
- independence: this is declared in sect. 8 PSA, which will be discussed later; besides, public prosecutors are not allowed to have other functions or duties which would hamper them in performing their duties, would be contrary to their authority or would cause a questioning of their independence, they cannot be members of political parties or be involved in political activities, prosecutors also have formal, and to some extent material, immunity from prosecutions (for all petty offences and insult of certain persons committed in the course of dispensing his duties he is only disciplinary responsible – sect. 66 PSA); as this independence has certain limits it must be distinguished from independence of judges which is a much broader concept; and
- self-reliance: when new circumstances in a case appear, the public prosecutor can make decisions by himself.
We can distinguish some specializations within a certain unit of prosecutors: organized crime, civil cases, and administrative cases. The public prosecutor deals with civil cases which mainly are: establishment of paternity, forfeiture, legal incapacitation. The administrative cases usually involve estate or building law.
In every regional office there is a public prosecutor trained in international cooperation in criminal matters.
After graduating in law, the usual road to becoming a public prosecutor is to pass an entrance exam for apprentices, prepare for three years during the apprenticeship, then to pass a state exam for prosecutors and practice in the service for at least one year as an assessor. The minimum age limit is 26 years.
Apprentices can act as public prosecutors in summary proceedings. As to assessors, their position depends on the fact whether they were granted a special permission to act by the Prosecutor General. If so, they can act as if they were nominated public prosecutors with the following exceptions: acting before regional, appellate and the Supreme Court and preparing remedies and motions to the Supreme Court. If an assessor is not granted such permission, he can play a role of a public prosecutor only in summary proceedings.
Some decisions of assessors or public prosecutors may need approbation of a superior or principal public prosecutor. Concerning assessors, approbation must be given to all the decisions finalizing preparatory proceedings, indictments and appeals. Beside that, the superior prosecutor can place the duty of obtaining approbation for the above mentioned acts or motions sent to a court when it seems necessary on his dependent prosecutor (sects. 51 and 52 Code of conduct). If obtaining approbation is impossible or significantly impeded in certain circumstances and the matter is urgent, the public prosecutor shall be allowed to decide the issue by himself informing his superior or principal prosecutor about his decision immediately (sect. 50 Code of conduct).
Main duties and powers of the prosecution service
According to sect. 2 PSA, the main duties of the public prosecution service are protecting law abidance and watching over prosecution of crimes. The duties are carried out by the Prosecutor General and other prosecutors by:
- carrying out, or supervising, preliminary investigations in criminal matters and acting as a public prosecutor before courts;
- instituting a civil action in criminal and civil cases, initiatives and presence in judicial proceedings in civil, labour or insurance matters when it is demanded by the need of protecting law abidance, public interest, property or rights of citizens;
- taking measures prescribed by law for correct and uniform application of the law in judicial and administrative proceedings in cases concerning contraventions and other proceedings;
- controlling execution of arrest warrants and other decisions resulting in deprivation of liberty;
- doing research in the field of crime, fighting and preventing crime;
- bringing actions to court in cases of non-conformity of administrative decisions with the law and taking part in court proceedings ensuring conformity with the law;
- coordinating activities in the field of fighting crime realized by other state institutions;
- cooperating with state institutions, state organizations and citizen’s organizations in preventing crime and other breaches of law;
- cooperating with the Chief of State Central Criminal Information Registry to the extent necessary for executing his tasks;
- giving opinions about projects of legal acts; and
- undertaking other activities prescribed by law.
During criminal proceedings, the public prosecutor is bound by the principle of objectivity (sect. 4 CCP) what means, that he should take into consideration not only incriminating circumstances but also exonerating circumstances and, is also bound by the principle of legality (sect. 10 CCP). He is obliged to conduct proceedings and undertake activities ex officio unless law demands certain motion or permission (sect. 9 CCP).
Exceptions to the legality principle are very rare. The most notable of them are absorptive discontinuation and immunity from prosecution for accomplice-witnesses (crown witnesses). Absorptive discontinuation (sect. 11 CCP) is possible for misdemeanours which carry a maximum prison sentence of five years, when passing a sentence in such a case would not be purposeful concerning a much more severe penalty already applied for other crime(s) and where this is not in conflict with the interest of a victim. Giving immunity to a suspect is allowed in cases concerning designated serious crimes and the immunity is given by the court on a motion of the public prosecutor. The procedure is not regulated in the CCP but in the Crown Witness Act 1997. The proceedings against the crown witness who fulfilled all the conditions imposed on him are discontinued as he is not subject to penal sanctions.
In addition, refusal to commence proceedings must be issued or proceedings must be discontinued when:
- there is no sufficient evidence that a criminal offence has been committed;
- an act does not constitute a criminal offence or law prescribes that the perpetrator of the forbidden act has not committed a crime;
- social harmfulness of the act is inconspicuous;
- according to law, a perpetrator is not subject to penal sanctions;
- the offender has died;
- prosecution is time-barred;
- other proceedings are still pending or ne bis in idem principle applies;
- a perpetrator is not subject to the jurisdiction of Polish criminal courts;
- there is lack of an indictment of a competent prosecutor (this applies only to court proceedings);
- there is lack of complaint or permission to prosecute unless law provides otherwise;
- there are other circumstances precluding prosecution (sect. 17 CCP).
It has to be pointed out, that despite of the legality principle, refusal to start proceedings must be issued or proceedings must be discontinued when social harmfulness of an act is inconspicuous. It is the so called material element of a crime and without this element the prohibited act does not constitute a crime (sect. 1 PC). Sect. 17 CCP allows termination of cases where, for example, the damage is insignificant or where the motivation of the perpetrator could be estimated positively (the explanations are given in sect. 115 PC).
Instead of indictment, the public prosecutor can send to a court a motion for a conditional discontinuation of proceedings. Up to 1998, this could be also be decided by the public prosecutor. However, there were many objections to such a power of the public prosecutor and finally the power was withdrawn from him. Conditional discontinuation of proceedings is possible in cases with a maximum penalty not exceeding three years of deprivation of liberty or – if the victim became reconciled with the perpetrator, the perpetrator redressed the wrong or they agreed the way of re-dressing the wrong – not exceeding five years of deprivation of liberty.
The public prosecutor can refer the case for mediation between the suspect and the victim to a competent person or institution (sect. 23a CCP). Reconciliation can then have significance for applying criminal law through for example, conditional discontinuation of proceedings or extraordinary mitigation in a sentence. Mediation exists since 1998, but in preparatory proceedings it is used very rarely.
The public prosecutor can also include a motion for passing a sentence by a court without trial in the indictment (sect. 335 CCP). It is possible in relation to misdemeanours, when the statutory maximum prison sentence is not higher than ten years, and gives the accused the possibility of a significant mitigation in sentence (sect. 343 CCP). The basic condition for such a motion is the reaching of an agreement between the public prosecutor and the suspect as to the severity of the sentence. It must be stressed, that the court is not bound by the proposed sentence and can send the case for trial. The institution of a motion is gaining popularity in the last years and the scope of its application was extended in 2003. As a result, more than 100,000 motions annually are addressed to courts.
In preparatory proceedings, the victim of a crime has a status of a party to the proceedings (sect. 299 CCP). In the course of judicial proceedings the victim plays a role of a witness with some additional rights, for example to participate in court sessions (sect. 384 CCP), except in judicial proceedings initiated by a private indictment. It is however possible for the victim to become a party during the trial also in cases prosecuted ex officio. In order to do that, he has to become a subsidiary auxiliary prosecutor, an accessory auxiliary prosecutor or a civil claimant.
As to the first situation it must be pointed out, that some misdemeanours – for example defamation or assault – are prosecuted with a private indictment so it is for the victim to collect evidence, prepare indictment, take a case to the court and support it as a private prosecutor. Nevertheless, when the public interest demands so, for example when the victim is an old or an ill person, the public prosecutor can initiate the proceedings or take over those already started. In this situation, the proceedings are carried ex officio and the victim is allowed to take part in a trial as an auxiliary prosecutor. If after that, the public prosecutor steps back from the prosecution, then the victim can act as a private prosecutor (sect. 60 CCP).
If the victim is dead, his rights could be dispensed by his next of kin, and where such persons are absent – by the public prosecutor (sect. 52 CCP).
Under some conditions, the victim of the crime prosecuted normally ex officio is empowered to file a bill of indictment in a court when the public prosecutor has declined to do so. The victim in this situation becomes a subsidiary auxiliary prosecutor. The possibility is available if either a refusal to start preparatory proceedings or decision to discontinue preparatory proceedings there was issued, or the decision was then revoked by the court as a result of complaint of the victim, the case returned back to investigation authority and after executing court directions the former negative decision was repeated and then sustained by the superior prosecutor (sect. 55 CCP). Indictments filled in this way are very rare as cases are well examined and if there would be any chance of success, a public prosecutor would normally prosecute. Nevertheless, such a possibility was introduced in CCP as a safeguard for victims’ rights. The victim can also support the indictment and together with the public prosecutor become an accessory auxiliary prosecutor (sect. 53 CCP).
The victim may also lodge an adhesion claim for damages stemming directly from a crime (sect. 62 CCP).
It must be underlined, that in the criminal justice system the prokurator can exercise three functions. He can act as:
- body of preparatory proceedings;
- party to judicial proceedings; and as
- advocate of public interest.
The prokurator acts as an advocate of public interest, for example by lodging an adhesion claim or maintaining an adhesion claim lodged by the victim when the public interest demands so. When he acts in this manner, he is not formally connected with any party of the proceedings despite the fact, that his action may be profitable to one of them.
Instructions
The Prosecutor General leads the service by himself or by his deputies. He issues orders, guidelines and instructions and can undertake all activities within the duties of the public prosecution service or make inferior prosecutors do them. Guidelines and instructions are issued very rarely. He can also take over activities of inferior prosecutors (sect. 10 PSA). The Prosecutor General may address the Constitutional Tribunal with a question of conformity of a certain legal act with the Constitution. He can issue binding instructions concerning preparatory proceedings for all the bodies empowered to carry the proceedings (sect. 29 PSA) but this possibility is not used in practice.
Supervision over public prosecutors is also held by superior public prosecutors and principal public prosecutors. This kind of supervision encompasses reading case files, consultations, directions, requests for further information or reports. Supervision is also exercised by means of visitations and inspections.
Generally, during the exercise of the duties prescribed by law, the public prosecutor is independent, with exceptions formulated in sect. 8 PSA. Those exceptions provide that the public prosecutor must perform orders, guidelines and instructions issued by the superior prosecutor. An instruction relating to the content of an action shall be issued by the superior prosecutor in writing, and with a reasoned opinion at the prosecutor’s request. In case such an instruction in writing would hamper proceedings, it shall be permitted to issue an instruction orally, and the superior prosecutor shall confirm this in writing without delay. If the public prosecutor does not agree with the instruction, he can ask for changes to be made or his exclusion from the case. The PSA also states that, instructions relating to the content of the process action issued by a superior prosecutor other than the direct superior prosecutor can not refer to the way preparatory proceedings are concluded, or to the proceedings before a court.
The Relation between the Public Prosecutor and the Minister of Justice
The organization of public prosecution service
The public prosecution service is composed of the Prosecutor General, prosecutors of common and military units of the service subordinate to him, and prosecutors of the Institute of National Memory and a Commission of Prosecuting Crimes against the Polish Nation (sect. 1 PSA). The last body was established in 1998 and its duties focus on prosecuting certain crimes against nationals or Polish citizens of other nationalities committed in the period from September 1, 1939 till December 31, 1989. The head of the Commission is one of the Prosecutor General’s deputies.
The Prosecutor General is the highest authority in the service and the post is filled by the Minister of Justice (sect. 1 PSA). The Minister of Justice, as a member of the government, is accountable before the Parliament and he can be held liable for prosecution policy or even decisions in particular cases.
The Council of Prosecutors is a body attached to the Prosecutor General. The Council can express its opinions at its own initiative, or at the General Prosecutor’s request. The opinions can for example concern proposals for guidelines and instructions from the General Prosecutor, periodical assessments of the performance of the service, and training of the members of the service (sect. 24 PSA). It is regrettable that the Council’s competences and authority are far smaller than the competences of the National Council of Judiciary which consults also legislative proposals concerning judiciary.
The common units of the public prosecution service are divided into four levels:
- the National Office;
- 11 appellate offices;
- 44 regional offices; and
- 348 district offices.
The National Office of the Public Prosecution Service – the highest unit – is part of the Ministry of Justice. The head of unit is the National Prosecutor, which is one of the Prosecutor General’s deputies. His duties are prescribed by the Prosecutor General. The lower units are headed respectively by Appellate Prosecutors, Regional Prosecutors and District Prosecutors.
Despite the fact that there are also four levels of courts (district courts, regional courts, appellate courts and the Supreme Court), units of the public prosecution service are currently separated from them. It means for example, that a prosecutor from a district office can act before a regional court.
Prosecutors of common units are appointed by the Prosecutor General (sect. 11 PSA), not by the President like judges are. Some reformers propose to change that in order to strengthen the position of public prosecutor.
The organization and functioning of the service is governed by the following principles:
- hierarchical subordination: public prosecutors of lower level are subordinate to the public prosecutors of upper level;
- devolution: a higher public prosecutor can overtake any case and conduct it;
- substitution: a higher public prosecutor can order his dependent public prosecutors to carry out an activity which lies within his competence;
- uniformity: the service is a uniform body of the state and activities of its members are attributed to it. It also means, that if the law does not state otherwise, dividing the tasks of the service is its internal matter;
- indifference: generally public prosecutors can replace each other during the proceedings and all acts done by the previous public prosecutor are valid;
- centrality: prosecution service is managed centrally by the Prosecutor General, and other units are managed by their head prosecutors;
- independence: this is declared in sect. 8 PSA, which will be discussed later; besides, public prosecutors are not allowed to have other functions or duties which would hamper them in performing their duties, would be contrary to their authority or would cause a questioning of their independence, they cannot be members of political parties or be involved in political activities, prosecutors also have formal, and to some extent material, immunity from prosecutions (for all petty offences and insult of certain persons committed in the course of dispensing his duties he is only disciplinary responsible – sect. 66 PSA); as this independence has certain limits it must be distinguished from independence of judges which is a much broader concept; and
- self-reliance: when new circumstances in a case appear, the public prosecutor can make decisions by himself.
We can distinguish some specializations within a certain unit of prosecutors: organized crime, civil cases, and administrative cases. The public prosecutor deals with civil cases which mainly are: establishment of paternity, forfeiture, legal incapacitation. The administrative cases usually involve estate or building law.
In every regional office there is a public prosecutor trained in international cooperation in criminal matters.
After graduating in law, the usual road to becoming a public prosecutor is to pass an entrance exam for apprentices, prepare for three years during the apprenticeship, then to pass a state exam for prosecutors and practice in the service for at least one year as an assessor. The minimum age limit is 26 years.
Apprentices can act as public prosecutors in summary proceedings. As to assessors, their position depends on the fact whether they were granted a special permission to act by the Prosecutor General. If so, they can act as if they were nominated public prosecutors with the following exceptions: acting before regional, appellate and the Supreme Court and preparing remedies and motions to the Supreme Court. If an assessor is not granted such permission, he can play a role of a public prosecutor only in summary proceedings.
Some decisions of assessors or public prosecutors may need approbation of a superior or principal public prosecutor. Concerning assessors, approbation must be given to all the decisions finalizing preparatory proceedings, indictments and appeals. Beside that, the superior prosecutor can place the duty of obtaining approbation for the above mentioned acts or motions sent to a court when it seems necessary on his dependent prosecutor (sects. 51 and 52 Code of conduct). If obtaining approbation is impossible or significantly impeded in certain circumstances and the matter is urgent, the public prosecutor shall be allowed to decide the issue by himself informing his superior or principal prosecutor about his decision immediately (sect. 50 Code of conduct).
Main duties and powers of the prosecution service
According to sect. 2 PSA, the main duties of the public prosecution service are protecting law abidance and watching over prosecution of crimes. The duties are carried out by the Prosecutor General and other prosecutors by:
- carrying out, or supervising, preliminary investigations in criminal matters and acting as a public prosecutor before courts;
- instituting a civil action in criminal and civil cases, initiatives and presence in judicial proceedings in civil, labour or insurance matters when it is demanded by the need of protecting law abidance, public interest, property or rights of citizens;
- taking measures prescribed by law for correct and uniform application of the law in judicial and administrative proceedings in cases concerning contraventions and other proceedings;
- controlling execution of arrest warrants and other decisions resulting in deprivation of liberty;
- doing research in the field of crime, fighting and preventing crime;
- bringing actions to court in cases of non-conformity of administrative decisions with the law and taking part in court proceedings ensuring conformity with the law;
- coordinating activities in the field of fighting crime realized by other state institutions;
- cooperating with state institutions, state organizations and citizen’s organizations in preventing crime and other breaches of law;
- cooperating with the Chief of State Central Criminal Information Registry to the extent necessary for executing his tasks;
- giving opinions about projects of legal acts; and
- undertaking other activities prescribed by law.
During criminal proceedings, the public prosecutor is bound by the principle of objectivity (sect. 4 CCP) what means, that he should take into consideration not only incriminating circumstances but also exonerating circumstances and, is also bound by the principle of legality (sect. 10 CCP). He is obliged to conduct proceedings and undertake activities ex officio unless law demands certain motion or permission (sect. 9 CCP).
Exceptions to the legality principle are very rare. The most notable of them are absorptive discontinuation and immunity from prosecution for accomplice-witnesses (crown witnesses). Absorptive discontinuation (sect. 11 CCP) is possible for misdemeanours which carry a maximum prison sentence of five years, when passing a sentence in such a case would not be purposeful concerning a much more severe penalty already applied for other crime(s) and where this is not in conflict with the interest of a victim. Giving immunity to a suspect is allowed in cases concerning designated serious crimes and the immunity is given by the court on a motion of the public prosecutor. The procedure is not regulated in the CCP but in the Crown Witness Act 1997. The proceedings against the crown witness who fulfilled all the conditions imposed on him are discontinued as he is not subject to penal sanctions.
In addition, refusal to commence proceedings must be issued or proceedings must be discontinued when:
- there is no sufficient evidence that a criminal offence has been committed;
- an act does not constitute a criminal offence or law prescribes that the perpetrator of the forbidden act has not committed a crime;
- social harmfulness of the act is inconspicuous;
- according to law, a perpetrator is not subject to penal sanctions;
- the offender has died;
- prosecution is time-barred;
- other proceedings are still pending or ne bis in idem principle applies;
- a perpetrator is not subject to the jurisdiction of Polish criminal courts;
- there is lack of an indictment of a competent prosecutor (this applies only to court proceedings);
- there is lack of complaint or permission to prosecute unless law provides otherwise;
- there are other circumstances precluding prosecution (sect. 17 CCP).
It has to be pointed out, that despite of the legality principle, refusal to start proceedings must be issued or proceedings must be discontinued when social harmfulness of an act is inconspicuous. It is the so called material element of a crime and without this element the prohibited act does not constitute a crime (sect. 1 PC). Sect. 17 CCP allows termination of cases where, for example, the damage is insignificant or where the motivation of the perpetrator could be estimated positively (the explanations are given in sect. 115 PC).
Instead of indictment, the public prosecutor can send to a court a motion for a conditional discontinuation of proceedings. Up to 1998, this could be also be decided by the public prosecutor. However, there were many objections to such a power of the public prosecutor and finally the power was withdrawn from him. Conditional discontinuation of proceedings is possible in cases with a maximum penalty not exceeding three years of deprivation of liberty or – if the victim became reconciled with the perpetrator, the perpetrator redressed the wrong or they agreed the way of re-dressing the wrong – not exceeding five years of deprivation of liberty.
The public prosecutor can refer the case for mediation between the suspect and the victim to a competent person or institution (sect. 23a CCP). Reconciliation can then have significance for applying criminal law through for example, conditional discontinuation of proceedings or extraordinary mitigation in a sentence. Mediation exists since 1998, but in preparatory proceedings it is used very rarely.
The public prosecutor can also include a motion for passing a sentence by a court without trial in the indictment (sect. 335 CCP). It is possible in relation to misdemeanours, when the statutory maximum prison sentence is not higher than ten years, and gives the accused the possibility of a significant mitigation in sentence (sect. 343 CCP). The basic condition for such a motion is the reaching of an agreement between the public prosecutor and the suspect as to the severity of the sentence. It must be stressed, that the court is not bound by the proposed sentence and can send the case for trial. The institution of a motion is gaining popularity in the last years and the scope of its application was extended in 2003. As a result, more than 100,000 motions annually are addressed to courts.
In preparatory proceedings, the victim of a crime has a status of a party to the proceedings (sect. 299 CCP). In the course of judicial proceedings the victim plays a role of a witness with some additional rights, for example to participate in court sessions (sect. 384 CCP), except in judicial proceedings initiated by a private indictment. It is however possible for the victim to become a party during the trial also in cases prosecuted ex officio. In order to do that, he has to become a subsidiary auxiliary prosecutor, an accessory auxiliary prosecutor or a civil claimant.
As to the first situation it must be pointed out, that some misdemeanours – for example defamation or assault – are prosecuted with a private indictment so it is for the victim to collect evidence, prepare indictment, take a case to the court and support it as a private prosecutor. Nevertheless, when the public interest demands so, for example when the victim is an old or an ill person, the public prosecutor can initiate the proceedings or take over those already started. In this situation, the proceedings are carried ex officio and the victim is allowed to take part in a trial as an auxiliary prosecutor. If after that, the public prosecutor steps back from the prosecution, then the victim can act as a private prosecutor (sect. 60 CCP).
If the victim is dead, his rights could be dispensed by his next of kin, and where such persons are absent – by the public prosecutor (sect. 52 CCP).
Under some conditions, the victim of the crime prosecuted normally ex officio is empowered to file a bill of indictment in a court when the public prosecutor has declined to do so. The victim in this situation becomes a subsidiary auxiliary prosecutor. The possibility is available if either a refusal to start preparatory proceedings or decision to discontinue preparatory proceedings there was issued, or the decision was then revoked by the court as a result of complaint of the victim, the case returned back to investigation authority and after executing court directions the former negative decision was repeated and then sustained by the superior prosecutor (sect. 55 CCP). Indictments filled in this way are very rare as cases are well examined and if there would be any chance of success, a public prosecutor would normally prosecute. Nevertheless, such a possibility was introduced in CCP as a safeguard for victims’ rights. The victim can also support the indictment and together with the public prosecutor become an accessory auxiliary prosecutor (sect. 53 CCP).
The victim may also lodge an adhesion claim for damages stemming directly from a crime (sect. 62 CCP).
It must be underlined, that in the criminal justice system the prokurator can exercise three functions. He can act as:
- body of preparatory proceedings;
- party to judicial proceedings; and as
- advocate of public interest.
The prokurator acts as an advocate of public interest, for example by lodging an adhesion claim or maintaining an adhesion claim lodged by the victim when the public interest demands so. When he acts in this manner, he is not formally connected with any party of the proceedings despite the fact, that his action may be profitable to one of them.
Instructions
The Prosecutor General leads the service by himself or by his deputies. He issues orders, guidelines and instructions and can undertake all activities within the duties of the public prosecution service or make inferior prosecutors do them. Guidelines and instructions are issued very rarely. He can also take over activities of inferior prosecutors (sect. 10 PSA). The Prosecutor General may address the Constitutional Tribunal with a question of conformity of a certain legal act with the Constitution. He can issue binding instructions concerning preparatory proceedings for all the bodies empowered to carry the proceedings (sect. 29 PSA) but this possibility is not used in practice.
Supervision over public prosecutors is also held by superior public prosecutors and principal public prosecutors. This kind of supervision encompasses reading case files, consultations, directions, requests for further information or reports. Supervision is also exercised by means of visitations and inspections.
Generally, during the exercise of the duties prescribed by law, the public prosecutor is independent, with exceptions formulated in sect. 8 PSA. Those exceptions provide that the public prosecutor must perform orders, guidelines and instructions issued by the superior prosecutor. An instruction relating to the content of an action shall be issued by the superior prosecutor in writing, and with a reasoned opinion at the prosecutor’s request. In case such an instruction in writing would hamper proceedings, it shall be permitted to issue an instruction orally, and the superior prosecutor shall confirm this in writing without delay. If the public prosecutor does not agree with the instruction, he can ask for changes to be made or his exclusion from the case. The PSA also states that, instructions relating to the content of the process action issued by a superior prosecutor other than the direct superior prosecutor can not refer to the way preparatory proceedings are concluded, or to the proceedings before a court.
