The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
The prosecution service is not dominus litis. He is a collaborator of the Court in the discovery of the truth and the accomplishment of the law, at the same time unable to decide on it, which is a function that belongs to the court.
The public prosecutor may not decide to charge the suspect with a less severe offence, despite the existence of sufficient evidence to charge the suspect with a more serious crime. This would be in conflict with the legality principle. What may happen is that the prosecutor may refrain from charging aggravating circumstances and can thus reduce the sentencing frame of the court.
The accusatorial system of accusation and contradiction provides a defense guarantee, which characterises the Portuguese criminal justice system.
The accusatorial system requires that nobody can be judged without having been previously accused and that it is the indictment at the end of the inquiry phase, which defines the limits of the court trial.
However, when during the court trial:
- the court consider as proven new facts which, added to the facts charged would lead to another, more serious crime, only the court can modify the charge with the agreement of all parties unless the court communicates all the new facts to the prosecution service so that it opens a new inquiry;
- when the new facts that the court considers proven will not have as effect the imputation to the offender of a more serious crime, the court may modify the charge in this sense, granting the offender a period to give his views on the modification of the charge, in obedience to the principle of contradiction (Sect. 358 CCP);
- even when no alteration of facts occurs, the court can still modify the legal qualification of the facts after giving a stated period to the offender to pronounce itself on this legal alteration of the charge.
During the court hearing the prosecution service cannot change the charge. Since the public prosecutor is bound by the principle of legality, objectivity and impartiality he may, in the interest of the defense, request an acquittal when reasons for a discharge are present. He may also lodge an appeal against a conviction in the interest of the defense (Sect. 401 CCP).
Cross-examination takes place during the trial, and all parties in the trial are examined in this way, the offender, the witnesses, the expert witnesses, the victim etc.
If the witness is under sixteen years of age, the court must formulate the questions that might be requested by the other parties (Sect. 34 CCP). All parties have the right to examine the witnesses.
This right remains, even if the witness benefits of some specific protection regime, in that case the examination may be done using long-distance transmission devices.
In his closing speech the prosecutor sums up the evidence and requests either a conviction and the sentence to be imposed, or an acquittal. The judge is not bound by this request.
The Role of the Public Prosecutor in Court
The prosecution service is not dominus litis. He is a collaborator of the Court in the discovery of the truth and the accomplishment of the law, at the same time unable to decide on it, which is a function that belongs to the court.
The public prosecutor may not decide to charge the suspect with a less severe offence, despite the existence of sufficient evidence to charge the suspect with a more serious crime. This would be in conflict with the legality principle. What may happen is that the prosecutor may refrain from charging aggravating circumstances and can thus reduce the sentencing frame of the court.
The accusatorial system of accusation and contradiction provides a defense guarantee, which characterises the Portuguese criminal justice system.
The accusatorial system requires that nobody can be judged without having been previously accused and that it is the indictment at the end of the inquiry phase, which defines the limits of the court trial.
However, when during the court trial:
- the court consider as proven new facts which, added to the facts charged would lead to another, more serious crime, only the court can modify the charge with the agreement of all parties unless the court communicates all the new facts to the prosecution service so that it opens a new inquiry;
- when the new facts that the court considers proven will not have as effect the imputation to the offender of a more serious crime, the court may modify the charge in this sense, granting the offender a period to give his views on the modification of the charge, in obedience to the principle of contradiction (Sect. 358 CCP);
- even when no alteration of facts occurs, the court can still modify the legal qualification of the facts after giving a stated period to the offender to pronounce itself on this legal alteration of the charge.
During the court hearing the prosecution service cannot change the charge. Since the public prosecutor is bound by the principle of legality, objectivity and impartiality he may, in the interest of the defense, request an acquittal when reasons for a discharge are present. He may also lodge an appeal against a conviction in the interest of the defense (Sect. 401 CCP).
Cross-examination takes place during the trial, and all parties in the trial are examined in this way, the offender, the witnesses, the expert witnesses, the victim etc.
If the witness is under sixteen years of age, the court must formulate the questions that might be requested by the other parties (Sect. 34 CCP). All parties have the right to examine the witnesses.
This right remains, even if the witness benefits of some specific protection regime, in that case the examination may be done using long-distance transmission devices.
In his closing speech the prosecutor sums up the evidence and requests either a conviction and the sentence to be imposed, or an acquittal. The judge is not bound by this request.
