The Role of the State Prosecutor’s Office in Court
Chapter III
The Role of the State Prosecutor’s Office in Court
The state prosecutor in court during the phase of a court procedure before an investigating judge
In order to define the role of the state prosecutor, his role in a so-called ordinary criminal procedure will be described. The content of the legal provisions also apply for other types of procedure, such as in a summary procedure, in a procedure against a juvenile and so forth. An ordinary criminal procedure is a procedure in which criminal offences are tried for which the potential penalty is a prison sentence in excess of three years and some specified criminal offences, while a summary procedure is prescribed for crimes for which a sentence of up to three years imprisonment can be imposed.
Unless the state prosecutor decides to reject a criminal complaint, to resolve it in a different way, or to present a direct indictment, he can file a request at court with the investigating judge for a criminal investigation to be carried out. A judicial criminal investigation is not performed in all cases. The state prosecutor can also present a direct indictment without an investigation, when the data collected provide a sufficient basis for a charge, and when it concerns criminal offence for which a prison sentence up to eight years is prescribed (sect. 170 CCP).
A direct indictment can also be presented in the case in of a criminal offence for which a higher sentence is prescribed, but on condition that the investigating judge has already examined the accused, and that the investigating judge agrees with the presentation of a direct indictment. The prosecutor must in such a case request the investigating judge to consent to the presentation of a direct indictment.
A criminal investigation can only be commenced at the request of an authorised prosecutor, but a court decides on its initiation (investigating judge or non-trial panel). The investigating judge is not entitled to start an investigation, and thus a criminal procedure, on his own initiative but must obtain a request from an authorised prosecutor. The filing of the prosecutor’s request is not enough for the initiation of an investigation because the investigating judge must also issue a decision on the initiation of an investigation. The consent of two bodies is thus needed for the initiation of an investigation, the request of a state prosecutor and a court decision (by the investigating judge or a non-trial panel).
On the basis of a complaint, the state prosecutor files a request for an investigation with the investigating judge of jurisdiction, when he concludes from the statements and evidence that there are grounds for suspicion that a specific person has committed a criminal offence (sect. 168 CCP). When the state prosecutor files a request for an investigation, he sends the investigating judge the criminal complaint, all documents and records of actions performed, and objects that can be evidence, or notification of their whereabouts (sect. 168 CCP). It is not allowed, namely, to withhold evidence for ‘tactical’ reasons, since even at the phase of criminal investigation, the accused must be guaranteed that he is acquainted with what he stands accused and what evidence there is against him, in order to be able to prepare a defence.
When the state prosecutor withdraws a request for an investigation before the investigating judge issues a decision on the investigation, he refuses the request with this decision and reports to the injured party that he may initiate a prosecution himself (sect. 168 in connection with sects. 60 and 62 CCP). Whenever the prosecutor does not commence or continue a procedure, the injured party may appear as subsidiary prosecutor.
The purpose of an investigation is to collect the evidence and information required to decide on a further criminal procedure, that is to say whether to present an indictment or halt the procedure.
A request for an investigation, which by form and content is specified by law as a procedural act of the prosecutor, must name the person to be investigated, give a description of the acts that constitute the legal elements of a criminal offence, give the statutory designation of the criminal offence, detail the circumstances that provide grounds for suspicion, and indicate the evidence already collected.
The investigation is carried out by the investigating judge in relation to the criminal offence only, and against the accused to whom the demand or the decision on investigation relates. However, the investigation can be extended to other crimes and other persons at the request of the prosecutor. The state prosecutor proposes the investigatory tasks that the investigating judge should perform, but the law explicitly does not dictate the investigating judge which evidence about the facts he should collect in a specific case. The judge decides this himself on the basis of his own knowledge and experience. In the course of the investigation, various investigatory tasks can be carried out, during which the state prosecutor can be present. He can thus be present during examination of the accused, during crime scene investigation and the examining of expert witnesses, during house searches, during the examination of witnesses and the injured party. The parties are therefore the accused, the attorney and the state prosecutor, who are present during investigatory tasks and can put questions to the accused, witnesses or expert witnesses. All these described forms of cooperation of parties, including the state prosecutor indicate the adversarial nature of this part of the procedure. The investigation is conducted by the investigating judge, who is the dominus litis during this phase. An injured party present can also put questions through him. An investigating judge ensures maintenance of order during the investigation, and can terminate the investigation if statutory reasons exist. An investigating judge halts an investigation by decision if, during or at the end of the investigation, the state prosecutor states that he withdraws from criminal prosecution, and the injured party, after having been informed, does not continue the prosecution. Only a non-trial panel may halt an investigation against the will of the state prosecutor, when it concludes that the act of which the defendant is accused is not a criminal offence, circumstances are shown that exclude criminal liability of the defendant, criminal prosecution becomes statute-barred, the act is covered by amnesty or clemency, other circumstances are shown that exclude prosecution, or there is no evidence that the accused committed the act (sect. 181 CCP).
The investigating judge closes an investigation when he establishes that the factual circumstances in the investigation are sufficiently clarified for an indictment to be presented, or the procedure to be halted.
When the investigation is completed, the investigating judge sends the record to the state prosecutor, who decides whether to file a charge or to abandon criminal prosecution.
In deciding whether to present an indictment, the state prosecutor is bound to the principle of legality. He must present an indictment in the case of a criminal offence for which it is confirmed in the investigation that there are grounds warranting the suspicion that the person against whom the investigation was carried out committed the offence. In case of criminal offences that are prosecuted ex officio, the state prosecutor is bound to initiate a criminal prosecution and to pursue it as long as the material and legal grounds for this have been fulfilled. If he has sufficient evidence against a specific accused for specific acts, he must initiate and continue a criminal prosecution against this person for this precise act. He cannot avoid such a consistent prosecution on the grounds of possible reasons of expediency, since the principle of legality binds him to a criminal prosecution and, at the same time, ensures that penal legislation will be applied uniformly to all citizens. The principle of legality is, however, mitigated by non-trial solution of cases that have already been presented, such as settlement, deferred prosecution and a decision that an act is of minor significance, but these are applied prior to the prosecutor making any request to the court.
Role of the state prosecutor in a procedure before a trial court
The state prosecutor can present an indictment or declare that he is abandoning the criminal prosecution after study of a case in which an investigation was performed.
The indictment is a formal charge, which must be composed in the prescribed form specified by law, and the law also prescribes a special procedure for testing an indictment (Sect. 168 CCP). The indictment must contain the name and surname of the accused and other data about him, a description of the act that has the statutory designation of a criminal offence, the time and place that the criminal offence was committed, the object and means with which the criminal offence was committed, and other circumstances by which to designate the act as precisely as possible. It must also contain the statutory designation of the criminal offence, citing the provisions of the law that are being used on the proposal of the prosecutor, the designation of the court before which the case will be tried, and the prosecutor must also provide a proposal of what evidence will be presented at trial, as well as a reasoning of the indictment (Sect. 169 CCP). The subject of trial, its subjective and objective identity, is thus specified by the indictment. The judgment, in other words, may only refer to the person accused and only to the act that is the object of the charge, covered in the indictment presented, changed or enlarged at a trial. The accused is thus guaranteed the opportunity to prepare his defence. On the basis of the description of the act in the indictment, the accused has the right to state facts and to propose evidence which is to his advantage. It is not therefore enough for the indictment to contain a description of the criminal offence only. It should also reflect the basis on which the prosecutor believes that there is sufficient evidence for the accusation, and that the accused is suspected on good grounds of the act that is the object of the charge. The indictment is a formal procedural act, which is generally composed in writing.
When the prosecutor has presented an indictment, it is then tested. First, a formal test is applied ex officio. This is done by the president of the panel of the court before which the case will be heard. This test concerns questions of whether the court has material and territorial jurisdiction to try the case, whether the indictment is composed in compliance with the law. If the indictment passes the formal test, the president of the panel before which it will be tried orders the indictment to be served on the accused. A further test of the indictment then takes place if this is requested by the accused, his attorney, or the panel president. The law prescribes the procedures for testing, which depend on various elements, procedural situations and types of act of indictment presented. In an objection procedure a situation can occur in which the indictment is refused because of formal deficiencies that the state prosecutor must correct. This must be done within three days, whereby this deadline is not preclusive for the state prosecutor. If an objection is not filed or if the indictment passes this part of the test, too, it becomes legally binding. It binds the court to call a trial.
The legally binding nature of the indictment does not mean that it cannot be changed. The indictment may be amended or extended at trial. The state prosecutor may amend or extend the indictment if, at trial, a different fact than that on which the charge relies is found on the basis of the evidence presented. In such a case, the prosecutor can change the charge orally, and can also propose that the trial be adjourned in order to prepare a fresh indictment. The prosecutor can also change the legal designation or qualification of the act only, since in such a case it is not a real change to the indictment because the court is not bound to the prosecutor’s proposal in relation to a legal judgement of the act. A prosecutor can also extend the charge if the accused commits a criminal offence during the hearing, or if during the trial any other of his previous criminal offences is discovered. The state prosecutor can also do this verbally. There is no objection procedure against such a charge. It is also possible for the prosecutor to change the previous charge, and at the same time to extend it to new criminal offences.
In connection with changes and enlargements to an indictment, the question of the subjective identity of the charge and the judgement is raised. In accordance with the accusatory principle, the judgment may only relate to the person charged (subjective identity) and to the act that is the object of the charge (objective identity). It does not require accordance of the judgment and the charge in relation to a legal definition of the criminal offence (legal identity). Subjective identity between the charge and judgment must be shown in that the judgment may only relate to the person who has been accused. If the court, on the basis of evidence presented, recognises that the act that is the object of the charge was not committed by the defendant but by another person who has not been charged, it passes a judgement of acquittal. The prosecutor cannot extend the charge to another person during a hearing, but can individually request the initiation of a criminal procedure against such a person for the same act, by making a motion for an investigation or by filing an act of indictment. Objective identity between the charge and the judgment means that the judgment is bound to the act that is described in the charge and not to a historical event that actually occurred, or was ascertained as such by the court. Although the court is bound by the principle of seeking the material truth, the defendant cannot be convicted for an act that he did actually commit, if the prosecutor did not amend the charge in a suitable manner. The requirement for objective identity between the charge and judgment enables the defendant an effective defence and prevents the court from being transformed into a criminal prosecution body. With objective identity, the first question raised is the extent to which the court is bound by the description of the act in the charge, or whether the court can itself change the charge and, if it can do this, what changes are permissible without it being considered that the court had overstepped the charge. If the concept of objective identity were to be absolute, then the court would not be able to change the description of the act from the charge in any way at all, not even if a fact were to be established to the defendant’s advantage. Such a concept of objective identity between the charge and the judgment could result in a court acquitting a defendant of the charge only because an individual fact was not found to be as described by the prosecutor in the charge. Case law, and also procedural theory, does not accept such an absolute linkage of the judgment to the charge. A court can change the description of the criminal offence in the charge in essential elements only if this is to the defendant’s advantage. The court can only change the description of the criminal offence in relation to circumstances and facts that are not legally relevant for the criminal offence and criminal liability (editorial, linguistic or stylistic improvements). It is permissible to leave out legally relevant facts from the description of abstract and specific actual circumstances of an individual form of a criminal offence committed, as well as a fact that signifies a qualified form of a criminal offence. Some other changes are permissible, which are to the defendant’s advantage. Changes to the description that would be to the detriment of the accused are not allowed, although in case law corrections of obvious written or calculating errors are allowed, even though to the detriment of the defendant, such as the sum of values of stolen items.
The course of the trial
The central and most important phase in the criminal proceedings is the trial, that is to say the main hearing. The court first carries out preparations for a trial, which is done by the president of the panel that will conduct the trial. The president of the senate calls a hearing to which he invites all participants, including the state prosecutor, as well as witnesses and expert witnesses proposed by the prosecutor in the indictment, and the defendant in answer to the charge, except those that the panel president thinks need not be examined at the hearing. The prosecutor and defendant can repeat proposals that the panel president has not granted at the trial. The panel president can adopt measures for ensuring the presence of participants at the hearing. He thus ensures evidence for the hearing, can decide on evidentiary motions from an injured party, can, without a motion, order that new evidence be provided, can introduce some evidence in advance which could not be introduced later in the procedure, and can exclude evidence that requires to be excluded. The panel president can, on motions from parties or ex officio, adjourn the commencement of a hearing, can also decide on the exclusion or the joining of a criminal procedure, and can halt a criminal procedure because of withdrawal of the charge. The prosecutor can withdraw an indictment during preparations for a trial, or before the commencement of the trial. The panel president informs all those who were summoned to the trial and specifically draws the attention of an injured party that he can continue the prosecution. If an injured party does not continue the prosecution, the panel president halts the procedure by decision.
If the procedure is not halted, a trial follows, which is conducted by the panel president. The panel president has both formal and material procedural leadership. The trial takes place in the following order: start of the session, start of the hearing, answer to the charge, examination of the defendant, evidentiary procedure, address by the parties, consultation and voting by the panel, pronouncement of judgment with a short reasoning and legal caution of the right to appeal, and caution on the obligation to give prior notice of an appeal. The presence of the state prosecutor at the main hearing is compulsory. If it is found that the state prosecutor has not come to a hearing called on the basis of an indictment by the state prosecutor, the trial shall be adjourned and the panel president informs the higher state prosecutor of this. A trial starts with a reading of the indictment. The prosecutor reads the indictment as it is an act of the prosecutor that the court must test. The indictment must be read even though the parties and the panel president are aware of it, so that other members of the panel and listeners are acquainted with it. When the indictment has been read, the panel president asks the defendant whether he understands it, and if the defendant does not understand it, the panel president calls on the prosecutor to explain its content in such a way that it is easier to understand. The defendant and his attorney have the right to answer the indictment read and to enter a plea in relation to the charge. In objection to the charge, the defendant can only state whether he admits the act of which he stands accused, and whether the objection has a legal nature. The defendant’s attorney can answer the charge on his behalf, but not about whether the defendant admits the act. When the defence has entered a plea to the charge, the panel president asks the defendant whether he wishes to defend himself, and if the defendant states that he wishes to defend himself, he is examined. The arrangement at the start of the hearing, which imposes the duty to read the indictment on the state prosecutor, derives from separation of the functions of prosecution and trial. The statutory definition of the institution of objection to the charge at this phase of the procedure serves the purpose of strengthening the adversarial nature of the hearing and rationalising the evidentiary procedure.
Examination of the defendant and witnesses then takes place, in such a way that the defendant first gives his defence and witnesses their testimony. Questions may then be put to these persons. The panel president calls on the prosecutor first and then on the attorney to put questions. An injured party, a legal representative, agent, co-defendant and expert witness can put questions only with the permission of the panel president. At a hearing, questions are first put by the prosecutor and legal representative directly. The other subjects put questions through the panel president, or directly if the panel president allows this. The panel president and members of the panel, or the court, only put questions at the end.
Special rules apply to the examination of the defendant and witnesses, in order for the adversarial principle to be expressed in the phase of the trial also. The law therefore introduced changes to the course of a hearing concerning the examination of the defendant and witnesses and other participants of the hearing, in relation to the order of putting questions. The method specified approaches the model of cross examination but not it its entirety. The panel president and members of the panel put additional questions at the end of the examination.
The panel president and panel have important powers in relation to the procedural conduct of a hearing. Despite the accusatory criminal procedure and the adversarial nature of a trial, the panel president is obliged to ensure that the object of the charge is clarified. This duty derives from the basic principle that a court must truthfully and completely establish all the facts decisive for judgement. The panel president is thus not merely a passive observer at a hearing, but, together with the panel members, plays an active role in ascertaining the material circumstances. According to this, when the defendant has been examined the hearing continues with the evidentiary procedure. The evidentiary procedure is the phase of the trial in which procedural acts of taking evidence are performed according to a statutorily defined order. A confession by the defendant at the hearing, even if complete, does not relieve the court of the duty to take other evidence also. Taking evidence includes all acts that, according to the court, are relevant for a proper judgment. Facts can be established and evidence introduced on the motion of the parties and injured party or on the initiative of the court itself. Evidence is taken in the order determined by the panel president. In deciding on an evidentiary motion, it is necessary to take four standards into account: that in view of the principle of free judgement of evidence the court only decides on what evidence will be introduced and how its credibility will be judged, that the court is not obliged to introduce all evidence proposed by the parties, that the proposed evidence must be relevant in material law and that the parties must ground the legal relevance of the proposed evidence with the required degree of probability.
The evidentiary procedure is completed when the panel president believes that all evidence has been introduced that the court decided was necessary to introduce. After completion of the evidentiary procedure, the panel president asks the parties and injured party whether they have any motions for supplementing the evidentiary procedure. If nobody proposes the supplementary taking of evidence or if such a motion is refused, the panel president indicates that the evidentiary procedure is completed on the basis of a decision of the panel
Addresses by the parties then follow, with a final summing up and explanation of the facts and law from their own point of view, in a way that supports their version of the event. The purpose of these concluding statements is that the parties provide their own assessment of the evidence introduced, and propose to the court how it should decide the case. After completion of the evidentiary procedure, the panel president allows the parties, injured party and defence council to speak. The prosecutor speaks first, followed by the injured party and council, and then the defendant.
In his summing up, the prosecutor puts forward an evaluation of the evidence introduced at the trial and then gives his conclusions on the facts that are relevant for a decision, and makes and justifies his proposal on the defendant’s criminal liability, on the provisions of the PC that should be used, and mitigating and aggravating circumstances that should be taken into account in deciding on the sentence. The prosecutor can make a proposal about the type and level of sentence and security measures, and can propose that a judicial caution or conditional sentence be imposed. If the prosecutor believes that conditions are given for a judgment of conviction, he provides an analysis of the evidence in his summing up, in which he also evaluates the contrary evidence and justifies the decision that he argues the panel should adopt. Although summing up is not a duty of the state prosecutor, it is nevertheless expected that he will at least provide a final address and reasoning of his position on all questions on which the use of criminal, material or procedural law depends, and that he will also propose a specific penal sanction or sentence that the court should pass. The panel is not bound by the prosecutor’s proposal, and can also pass a more severe sanction or higher sentence than proposed by the prosecutor. Even if the sentence passed on a defendant was that which the prosecutor proposed in his final address, the prosecutor can appeal against such a sentence because of the decision on sentence, and propose the passing of a stricter or less severe sentence. In the final address, the prosecutor can amend, extend or withdraw the charge. If he amends or extends it, despite the already completed evidentiary procedure, he must allow the defendant a defence and, if necessary, to supplement the evidentiary procedure. This also applies if, in a case of the withdrawal of a charge, an injured party continues the criminal prosecution as prosecutor. If the prosecutor does not make any proposal or if he does not make a statement or propose a judgement of conviction or an acquittal or judgement of refusal in his final address, it is not considered that he has withdrawn the charge. Withdrawal of the charge must be expressed. The state prosecutor can propose an acquittal, even if he does not withdraw the charge. Although a final judgement of refusal or acquittal has the same legal effect in relation to the prohibition on being tried again on the same matter, from the point of view of the defendant’s rehabilitation in the eyes of the public, an acquittal is certainly more favourable for him than a formal judgement of refusal because of the withdrawal of the charge. If the panel of the court, after completion of the addresses by parties, does not perceive the need to take any other evidence, the panel president indicates that the hearing is ended, and the panel then withdraws to consult and vote in order to pass judgement.
The Role of the State Prosecutor’s Office in Court
The state prosecutor in court during the phase of a court procedure before an investigating judge
In order to define the role of the state prosecutor, his role in a so-called ordinary criminal procedure will be described. The content of the legal provisions also apply for other types of procedure, such as in a summary procedure, in a procedure against a juvenile and so forth. An ordinary criminal procedure is a procedure in which criminal offences are tried for which the potential penalty is a prison sentence in excess of three years and some specified criminal offences, while a summary procedure is prescribed for crimes for which a sentence of up to three years imprisonment can be imposed.
Unless the state prosecutor decides to reject a criminal complaint, to resolve it in a different way, or to present a direct indictment, he can file a request at court with the investigating judge for a criminal investigation to be carried out. A judicial criminal investigation is not performed in all cases. The state prosecutor can also present a direct indictment without an investigation, when the data collected provide a sufficient basis for a charge, and when it concerns criminal offence for which a prison sentence up to eight years is prescribed (sect. 170 CCP).
A direct indictment can also be presented in the case in of a criminal offence for which a higher sentence is prescribed, but on condition that the investigating judge has already examined the accused, and that the investigating judge agrees with the presentation of a direct indictment. The prosecutor must in such a case request the investigating judge to consent to the presentation of a direct indictment.
A criminal investigation can only be commenced at the request of an authorised prosecutor, but a court decides on its initiation (investigating judge or non-trial panel). The investigating judge is not entitled to start an investigation, and thus a criminal procedure, on his own initiative but must obtain a request from an authorised prosecutor. The filing of the prosecutor’s request is not enough for the initiation of an investigation because the investigating judge must also issue a decision on the initiation of an investigation. The consent of two bodies is thus needed for the initiation of an investigation, the request of a state prosecutor and a court decision (by the investigating judge or a non-trial panel).
On the basis of a complaint, the state prosecutor files a request for an investigation with the investigating judge of jurisdiction, when he concludes from the statements and evidence that there are grounds for suspicion that a specific person has committed a criminal offence (sect. 168 CCP). When the state prosecutor files a request for an investigation, he sends the investigating judge the criminal complaint, all documents and records of actions performed, and objects that can be evidence, or notification of their whereabouts (sect. 168 CCP). It is not allowed, namely, to withhold evidence for ‘tactical’ reasons, since even at the phase of criminal investigation, the accused must be guaranteed that he is acquainted with what he stands accused and what evidence there is against him, in order to be able to prepare a defence.
When the state prosecutor withdraws a request for an investigation before the investigating judge issues a decision on the investigation, he refuses the request with this decision and reports to the injured party that he may initiate a prosecution himself (sect. 168 in connection with sects. 60 and 62 CCP). Whenever the prosecutor does not commence or continue a procedure, the injured party may appear as subsidiary prosecutor.
The purpose of an investigation is to collect the evidence and information required to decide on a further criminal procedure, that is to say whether to present an indictment or halt the procedure.
A request for an investigation, which by form and content is specified by law as a procedural act of the prosecutor, must name the person to be investigated, give a description of the acts that constitute the legal elements of a criminal offence, give the statutory designation of the criminal offence, detail the circumstances that provide grounds for suspicion, and indicate the evidence already collected.
The investigation is carried out by the investigating judge in relation to the criminal offence only, and against the accused to whom the demand or the decision on investigation relates. However, the investigation can be extended to other crimes and other persons at the request of the prosecutor. The state prosecutor proposes the investigatory tasks that the investigating judge should perform, but the law explicitly does not dictate the investigating judge which evidence about the facts he should collect in a specific case. The judge decides this himself on the basis of his own knowledge and experience. In the course of the investigation, various investigatory tasks can be carried out, during which the state prosecutor can be present. He can thus be present during examination of the accused, during crime scene investigation and the examining of expert witnesses, during house searches, during the examination of witnesses and the injured party. The parties are therefore the accused, the attorney and the state prosecutor, who are present during investigatory tasks and can put questions to the accused, witnesses or expert witnesses. All these described forms of cooperation of parties, including the state prosecutor indicate the adversarial nature of this part of the procedure. The investigation is conducted by the investigating judge, who is the dominus litis during this phase. An injured party present can also put questions through him. An investigating judge ensures maintenance of order during the investigation, and can terminate the investigation if statutory reasons exist. An investigating judge halts an investigation by decision if, during or at the end of the investigation, the state prosecutor states that he withdraws from criminal prosecution, and the injured party, after having been informed, does not continue the prosecution. Only a non-trial panel may halt an investigation against the will of the state prosecutor, when it concludes that the act of which the defendant is accused is not a criminal offence, circumstances are shown that exclude criminal liability of the defendant, criminal prosecution becomes statute-barred, the act is covered by amnesty or clemency, other circumstances are shown that exclude prosecution, or there is no evidence that the accused committed the act (sect. 181 CCP).
The investigating judge closes an investigation when he establishes that the factual circumstances in the investigation are sufficiently clarified for an indictment to be presented, or the procedure to be halted.
When the investigation is completed, the investigating judge sends the record to the state prosecutor, who decides whether to file a charge or to abandon criminal prosecution.
In deciding whether to present an indictment, the state prosecutor is bound to the principle of legality. He must present an indictment in the case of a criminal offence for which it is confirmed in the investigation that there are grounds warranting the suspicion that the person against whom the investigation was carried out committed the offence. In case of criminal offences that are prosecuted ex officio, the state prosecutor is bound to initiate a criminal prosecution and to pursue it as long as the material and legal grounds for this have been fulfilled. If he has sufficient evidence against a specific accused for specific acts, he must initiate and continue a criminal prosecution against this person for this precise act. He cannot avoid such a consistent prosecution on the grounds of possible reasons of expediency, since the principle of legality binds him to a criminal prosecution and, at the same time, ensures that penal legislation will be applied uniformly to all citizens. The principle of legality is, however, mitigated by non-trial solution of cases that have already been presented, such as settlement, deferred prosecution and a decision that an act is of minor significance, but these are applied prior to the prosecutor making any request to the court.
Role of the state prosecutor in a procedure before a trial court
The state prosecutor can present an indictment or declare that he is abandoning the criminal prosecution after study of a case in which an investigation was performed.
The indictment is a formal charge, which must be composed in the prescribed form specified by law, and the law also prescribes a special procedure for testing an indictment (Sect. 168 CCP). The indictment must contain the name and surname of the accused and other data about him, a description of the act that has the statutory designation of a criminal offence, the time and place that the criminal offence was committed, the object and means with which the criminal offence was committed, and other circumstances by which to designate the act as precisely as possible. It must also contain the statutory designation of the criminal offence, citing the provisions of the law that are being used on the proposal of the prosecutor, the designation of the court before which the case will be tried, and the prosecutor must also provide a proposal of what evidence will be presented at trial, as well as a reasoning of the indictment (Sect. 169 CCP). The subject of trial, its subjective and objective identity, is thus specified by the indictment. The judgment, in other words, may only refer to the person accused and only to the act that is the object of the charge, covered in the indictment presented, changed or enlarged at a trial. The accused is thus guaranteed the opportunity to prepare his defence. On the basis of the description of the act in the indictment, the accused has the right to state facts and to propose evidence which is to his advantage. It is not therefore enough for the indictment to contain a description of the criminal offence only. It should also reflect the basis on which the prosecutor believes that there is sufficient evidence for the accusation, and that the accused is suspected on good grounds of the act that is the object of the charge. The indictment is a formal procedural act, which is generally composed in writing.
When the prosecutor has presented an indictment, it is then tested. First, a formal test is applied ex officio. This is done by the president of the panel of the court before which the case will be heard. This test concerns questions of whether the court has material and territorial jurisdiction to try the case, whether the indictment is composed in compliance with the law. If the indictment passes the formal test, the president of the panel before which it will be tried orders the indictment to be served on the accused. A further test of the indictment then takes place if this is requested by the accused, his attorney, or the panel president. The law prescribes the procedures for testing, which depend on various elements, procedural situations and types of act of indictment presented. In an objection procedure a situation can occur in which the indictment is refused because of formal deficiencies that the state prosecutor must correct. This must be done within three days, whereby this deadline is not preclusive for the state prosecutor. If an objection is not filed or if the indictment passes this part of the test, too, it becomes legally binding. It binds the court to call a trial.
The legally binding nature of the indictment does not mean that it cannot be changed. The indictment may be amended or extended at trial. The state prosecutor may amend or extend the indictment if, at trial, a different fact than that on which the charge relies is found on the basis of the evidence presented. In such a case, the prosecutor can change the charge orally, and can also propose that the trial be adjourned in order to prepare a fresh indictment. The prosecutor can also change the legal designation or qualification of the act only, since in such a case it is not a real change to the indictment because the court is not bound to the prosecutor’s proposal in relation to a legal judgement of the act. A prosecutor can also extend the charge if the accused commits a criminal offence during the hearing, or if during the trial any other of his previous criminal offences is discovered. The state prosecutor can also do this verbally. There is no objection procedure against such a charge. It is also possible for the prosecutor to change the previous charge, and at the same time to extend it to new criminal offences.
In connection with changes and enlargements to an indictment, the question of the subjective identity of the charge and the judgement is raised. In accordance with the accusatory principle, the judgment may only relate to the person charged (subjective identity) and to the act that is the object of the charge (objective identity). It does not require accordance of the judgment and the charge in relation to a legal definition of the criminal offence (legal identity). Subjective identity between the charge and judgment must be shown in that the judgment may only relate to the person who has been accused. If the court, on the basis of evidence presented, recognises that the act that is the object of the charge was not committed by the defendant but by another person who has not been charged, it passes a judgement of acquittal. The prosecutor cannot extend the charge to another person during a hearing, but can individually request the initiation of a criminal procedure against such a person for the same act, by making a motion for an investigation or by filing an act of indictment. Objective identity between the charge and the judgment means that the judgment is bound to the act that is described in the charge and not to a historical event that actually occurred, or was ascertained as such by the court. Although the court is bound by the principle of seeking the material truth, the defendant cannot be convicted for an act that he did actually commit, if the prosecutor did not amend the charge in a suitable manner. The requirement for objective identity between the charge and judgment enables the defendant an effective defence and prevents the court from being transformed into a criminal prosecution body. With objective identity, the first question raised is the extent to which the court is bound by the description of the act in the charge, or whether the court can itself change the charge and, if it can do this, what changes are permissible without it being considered that the court had overstepped the charge. If the concept of objective identity were to be absolute, then the court would not be able to change the description of the act from the charge in any way at all, not even if a fact were to be established to the defendant’s advantage. Such a concept of objective identity between the charge and the judgment could result in a court acquitting a defendant of the charge only because an individual fact was not found to be as described by the prosecutor in the charge. Case law, and also procedural theory, does not accept such an absolute linkage of the judgment to the charge. A court can change the description of the criminal offence in the charge in essential elements only if this is to the defendant’s advantage. The court can only change the description of the criminal offence in relation to circumstances and facts that are not legally relevant for the criminal offence and criminal liability (editorial, linguistic or stylistic improvements). It is permissible to leave out legally relevant facts from the description of abstract and specific actual circumstances of an individual form of a criminal offence committed, as well as a fact that signifies a qualified form of a criminal offence. Some other changes are permissible, which are to the defendant’s advantage. Changes to the description that would be to the detriment of the accused are not allowed, although in case law corrections of obvious written or calculating errors are allowed, even though to the detriment of the defendant, such as the sum of values of stolen items.
The course of the trial
The central and most important phase in the criminal proceedings is the trial, that is to say the main hearing. The court first carries out preparations for a trial, which is done by the president of the panel that will conduct the trial. The president of the senate calls a hearing to which he invites all participants, including the state prosecutor, as well as witnesses and expert witnesses proposed by the prosecutor in the indictment, and the defendant in answer to the charge, except those that the panel president thinks need not be examined at the hearing. The prosecutor and defendant can repeat proposals that the panel president has not granted at the trial. The panel president can adopt measures for ensuring the presence of participants at the hearing. He thus ensures evidence for the hearing, can decide on evidentiary motions from an injured party, can, without a motion, order that new evidence be provided, can introduce some evidence in advance which could not be introduced later in the procedure, and can exclude evidence that requires to be excluded. The panel president can, on motions from parties or ex officio, adjourn the commencement of a hearing, can also decide on the exclusion or the joining of a criminal procedure, and can halt a criminal procedure because of withdrawal of the charge. The prosecutor can withdraw an indictment during preparations for a trial, or before the commencement of the trial. The panel president informs all those who were summoned to the trial and specifically draws the attention of an injured party that he can continue the prosecution. If an injured party does not continue the prosecution, the panel president halts the procedure by decision.
If the procedure is not halted, a trial follows, which is conducted by the panel president. The panel president has both formal and material procedural leadership. The trial takes place in the following order: start of the session, start of the hearing, answer to the charge, examination of the defendant, evidentiary procedure, address by the parties, consultation and voting by the panel, pronouncement of judgment with a short reasoning and legal caution of the right to appeal, and caution on the obligation to give prior notice of an appeal. The presence of the state prosecutor at the main hearing is compulsory. If it is found that the state prosecutor has not come to a hearing called on the basis of an indictment by the state prosecutor, the trial shall be adjourned and the panel president informs the higher state prosecutor of this. A trial starts with a reading of the indictment. The prosecutor reads the indictment as it is an act of the prosecutor that the court must test. The indictment must be read even though the parties and the panel president are aware of it, so that other members of the panel and listeners are acquainted with it. When the indictment has been read, the panel president asks the defendant whether he understands it, and if the defendant does not understand it, the panel president calls on the prosecutor to explain its content in such a way that it is easier to understand. The defendant and his attorney have the right to answer the indictment read and to enter a plea in relation to the charge. In objection to the charge, the defendant can only state whether he admits the act of which he stands accused, and whether the objection has a legal nature. The defendant’s attorney can answer the charge on his behalf, but not about whether the defendant admits the act. When the defence has entered a plea to the charge, the panel president asks the defendant whether he wishes to defend himself, and if the defendant states that he wishes to defend himself, he is examined. The arrangement at the start of the hearing, which imposes the duty to read the indictment on the state prosecutor, derives from separation of the functions of prosecution and trial. The statutory definition of the institution of objection to the charge at this phase of the procedure serves the purpose of strengthening the adversarial nature of the hearing and rationalising the evidentiary procedure.
Examination of the defendant and witnesses then takes place, in such a way that the defendant first gives his defence and witnesses their testimony. Questions may then be put to these persons. The panel president calls on the prosecutor first and then on the attorney to put questions. An injured party, a legal representative, agent, co-defendant and expert witness can put questions only with the permission of the panel president. At a hearing, questions are first put by the prosecutor and legal representative directly. The other subjects put questions through the panel president, or directly if the panel president allows this. The panel president and members of the panel, or the court, only put questions at the end.
Special rules apply to the examination of the defendant and witnesses, in order for the adversarial principle to be expressed in the phase of the trial also. The law therefore introduced changes to the course of a hearing concerning the examination of the defendant and witnesses and other participants of the hearing, in relation to the order of putting questions. The method specified approaches the model of cross examination but not it its entirety. The panel president and members of the panel put additional questions at the end of the examination.
The panel president and panel have important powers in relation to the procedural conduct of a hearing. Despite the accusatory criminal procedure and the adversarial nature of a trial, the panel president is obliged to ensure that the object of the charge is clarified. This duty derives from the basic principle that a court must truthfully and completely establish all the facts decisive for judgement. The panel president is thus not merely a passive observer at a hearing, but, together with the panel members, plays an active role in ascertaining the material circumstances. According to this, when the defendant has been examined the hearing continues with the evidentiary procedure. The evidentiary procedure is the phase of the trial in which procedural acts of taking evidence are performed according to a statutorily defined order. A confession by the defendant at the hearing, even if complete, does not relieve the court of the duty to take other evidence also. Taking evidence includes all acts that, according to the court, are relevant for a proper judgment. Facts can be established and evidence introduced on the motion of the parties and injured party or on the initiative of the court itself. Evidence is taken in the order determined by the panel president. In deciding on an evidentiary motion, it is necessary to take four standards into account: that in view of the principle of free judgement of evidence the court only decides on what evidence will be introduced and how its credibility will be judged, that the court is not obliged to introduce all evidence proposed by the parties, that the proposed evidence must be relevant in material law and that the parties must ground the legal relevance of the proposed evidence with the required degree of probability.
The evidentiary procedure is completed when the panel president believes that all evidence has been introduced that the court decided was necessary to introduce. After completion of the evidentiary procedure, the panel president asks the parties and injured party whether they have any motions for supplementing the evidentiary procedure. If nobody proposes the supplementary taking of evidence or if such a motion is refused, the panel president indicates that the evidentiary procedure is completed on the basis of a decision of the panel
Addresses by the parties then follow, with a final summing up and explanation of the facts and law from their own point of view, in a way that supports their version of the event. The purpose of these concluding statements is that the parties provide their own assessment of the evidence introduced, and propose to the court how it should decide the case. After completion of the evidentiary procedure, the panel president allows the parties, injured party and defence council to speak. The prosecutor speaks first, followed by the injured party and council, and then the defendant.
In his summing up, the prosecutor puts forward an evaluation of the evidence introduced at the trial and then gives his conclusions on the facts that are relevant for a decision, and makes and justifies his proposal on the defendant’s criminal liability, on the provisions of the PC that should be used, and mitigating and aggravating circumstances that should be taken into account in deciding on the sentence. The prosecutor can make a proposal about the type and level of sentence and security measures, and can propose that a judicial caution or conditional sentence be imposed. If the prosecutor believes that conditions are given for a judgment of conviction, he provides an analysis of the evidence in his summing up, in which he also evaluates the contrary evidence and justifies the decision that he argues the panel should adopt. Although summing up is not a duty of the state prosecutor, it is nevertheless expected that he will at least provide a final address and reasoning of his position on all questions on which the use of criminal, material or procedural law depends, and that he will also propose a specific penal sanction or sentence that the court should pass. The panel is not bound by the prosecutor’s proposal, and can also pass a more severe sanction or higher sentence than proposed by the prosecutor. Even if the sentence passed on a defendant was that which the prosecutor proposed in his final address, the prosecutor can appeal against such a sentence because of the decision on sentence, and propose the passing of a stricter or less severe sentence. In the final address, the prosecutor can amend, extend or withdraw the charge. If he amends or extends it, despite the already completed evidentiary procedure, he must allow the defendant a defence and, if necessary, to supplement the evidentiary procedure. This also applies if, in a case of the withdrawal of a charge, an injured party continues the criminal prosecution as prosecutor. If the prosecutor does not make any proposal or if he does not make a statement or propose a judgement of conviction or an acquittal or judgement of refusal in his final address, it is not considered that he has withdrawn the charge. Withdrawal of the charge must be expressed. The state prosecutor can propose an acquittal, even if he does not withdraw the charge. Although a final judgement of refusal or acquittal has the same legal effect in relation to the prohibition on being tried again on the same matter, from the point of view of the defendant’s rehabilitation in the eyes of the public, an acquittal is certainly more favourable for him than a formal judgement of refusal because of the withdrawal of the charge. If the panel of the court, after completion of the addresses by parties, does not perceive the need to take any other evidence, the panel president indicates that the hearing is ended, and the panel then withdraws to consult and vote in order to pass judgement.
