The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
The initiation of court proceedings takes place at the initiative of the prosecutor or another entitled subject (sect. 14 CCP). This provision in the CCP expresses the accusatory principle. As a rule, the indictment must be presented in written form with the exception contained in sect. 398 CCP. This allows the prosecutor to introduce new charges during the trial on the basis of circumstances discovered during the trial, if the accused agrees, and it is not necessary to carry new preparatory proceedings.
As the public prosecutor is bound by the principle of legality, he cannot charge a suspect with a lesser crime than evidence would allow nor can he drop some of the charges. Charge bargaining is impossible. Only a moderate version of plea bargaining is possible and occurs in practice mainly on the basis of the above mentioned sects. 335 or 387 CCP. The latter regulation allows the accused to propose a sentence, and if the public prosecutor and the victim do not make objections to the sentence, the court can pass this sentence on the accused without further examination of evidence. Annually, around 60,000 proposed sentences are issued.
The court is not bound by the charges stated in the indictment. It can modify or change them after prior notification to parties of such possibility (sect. 399 CCP). Modifying the charges can be also suggested by the prosecutor.
The procurator can act before every court (sect. 45 CCP). There are also some other bodies which can carry out the duty of a public prosecutor in specified minor cases. Some of them can prosecute only in the court of first instance (for example, the Trade Inspection, fiscal control authorities); while the others are entitled to act also in appeal proceedings (this applies to the Forest Guard). When such a prosecutor can act in the court of first instance only, a procurator takes over in further proceedings.
In public prosecutions the presence of a procurator during the trial is mandatory, except in the so called simplified proceedings which can take place without presence of the public prosecutor (sect. 46 CCP).
The public prosecutor opens the court trial by reading an indictment (sect. 385 CCP).
The public prosecutor can abstain from prosecution in the course of the trial, but this is not binding on the court. In other words, the court can proceed in this situation (sect. 14 CCP). In the latter case, the presence of the public prosecutor is still mandatory as the duty to protect law abidance remains.
Taking statements from witnesses is not done by a cross-examination in common law style. There are several stages of examination in the CCP, namely asking the witness what he knows about the case, allowing him to speak spontaneously, than asking him detailed questions by parties, their lawyers, judges and lay assessors.
The accused does not testify in the criminal procedure but if he wants so, he can give explanations (sect. 175 CCP). This means, that he cannot be punished for not saying the truth in his depositions and the explanations are not given under oath.
Sect. 397 CCP provides the court with a possibility to force the public prosecutor to undertake evidential activities in the course of the trial. When significant deficiencies of preparatory proceedings are shown at this stage of the judicial proceedings, and their removal by the court is impossible, the court may decide a break in the trial. It can also postpone the trial giving the public prosecutor some time for presenting evidence which would allow the deficiencies to be overcome. In order to collect the evidence, the public prosecutor can undertake activities by himself or ask the police to do that. This regulation – introduced in 2003 – may seem controversial taking into consideration the adversarial character of a trial and the rule of impartiality, but on the other hand, it is a remedy for a too passive attitude of public prosecutors in many cases.
After closing evidential proceedings, parties make closing speeches. In his closing speech (sect. 406 CCP) the public prosecutor usually makes reference to the evidence, supports the charges he thinks are appropriate and recommends the sentence to be imposed. The court is not bound by the recommendation.
As a party of criminal proceedings, the public prosecutor is empowered to lodge different legal means like an appeal, a complaint, and an objection. When the judgment is final, he can in certain circumstances also lodge a cassation or a motion for renewal of proceedings. It must be stressed, that the public prosecutor can use the above mentioned remedies not only against an accused, but also in his favour. In the latter situation, a procurator dispenses his function of law abidance control. The Prosecutor General may lodge a cassation from every final court decision ending criminal proceedings (sect. 521 CCP).
The Role of the Public Prosecutor in Court
The initiation of court proceedings takes place at the initiative of the prosecutor or another entitled subject (sect. 14 CCP). This provision in the CCP expresses the accusatory principle. As a rule, the indictment must be presented in written form with the exception contained in sect. 398 CCP. This allows the prosecutor to introduce new charges during the trial on the basis of circumstances discovered during the trial, if the accused agrees, and it is not necessary to carry new preparatory proceedings.
As the public prosecutor is bound by the principle of legality, he cannot charge a suspect with a lesser crime than evidence would allow nor can he drop some of the charges. Charge bargaining is impossible. Only a moderate version of plea bargaining is possible and occurs in practice mainly on the basis of the above mentioned sects. 335 or 387 CCP. The latter regulation allows the accused to propose a sentence, and if the public prosecutor and the victim do not make objections to the sentence, the court can pass this sentence on the accused without further examination of evidence. Annually, around 60,000 proposed sentences are issued.
The court is not bound by the charges stated in the indictment. It can modify or change them after prior notification to parties of such possibility (sect. 399 CCP). Modifying the charges can be also suggested by the prosecutor.
The procurator can act before every court (sect. 45 CCP). There are also some other bodies which can carry out the duty of a public prosecutor in specified minor cases. Some of them can prosecute only in the court of first instance (for example, the Trade Inspection, fiscal control authorities); while the others are entitled to act also in appeal proceedings (this applies to the Forest Guard). When such a prosecutor can act in the court of first instance only, a procurator takes over in further proceedings.
In public prosecutions the presence of a procurator during the trial is mandatory, except in the so called simplified proceedings which can take place without presence of the public prosecutor (sect. 46 CCP).
The public prosecutor opens the court trial by reading an indictment (sect. 385 CCP).
The public prosecutor can abstain from prosecution in the course of the trial, but this is not binding on the court. In other words, the court can proceed in this situation (sect. 14 CCP). In the latter case, the presence of the public prosecutor is still mandatory as the duty to protect law abidance remains.
Taking statements from witnesses is not done by a cross-examination in common law style. There are several stages of examination in the CCP, namely asking the witness what he knows about the case, allowing him to speak spontaneously, than asking him detailed questions by parties, their lawyers, judges and lay assessors.
The accused does not testify in the criminal procedure but if he wants so, he can give explanations (sect. 175 CCP). This means, that he cannot be punished for not saying the truth in his depositions and the explanations are not given under oath.
Sect. 397 CCP provides the court with a possibility to force the public prosecutor to undertake evidential activities in the course of the trial. When significant deficiencies of preparatory proceedings are shown at this stage of the judicial proceedings, and their removal by the court is impossible, the court may decide a break in the trial. It can also postpone the trial giving the public prosecutor some time for presenting evidence which would allow the deficiencies to be overcome. In order to collect the evidence, the public prosecutor can undertake activities by himself or ask the police to do that. This regulation – introduced in 2003 – may seem controversial taking into consideration the adversarial character of a trial and the rule of impartiality, but on the other hand, it is a remedy for a too passive attitude of public prosecutors in many cases.
After closing evidential proceedings, parties make closing speeches. In his closing speech (sect. 406 CCP) the public prosecutor usually makes reference to the evidence, supports the charges he thinks are appropriate and recommends the sentence to be imposed. The court is not bound by the recommendation.
As a party of criminal proceedings, the public prosecutor is empowered to lodge different legal means like an appeal, a complaint, and an objection. When the judgment is final, he can in certain circumstances also lodge a cassation or a motion for renewal of proceedings. It must be stressed, that the public prosecutor can use the above mentioned remedies not only against an accused, but also in his favour. In the latter situation, a procurator dispenses his function of law abidance control. The Prosecutor General may lodge a cassation from every final court decision ending criminal proceedings (sect. 521 CCP).
