The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
Bringing the case to court
It has already been said that only the public prosecutor – with a few exceptions – is authorised to bring a case to court. The first step in this proceeding, after the preliminary investigation has been closed, is to decide, whether to prosecute in court or not (ch. 23 sect. 20 CJP). At this stage, the authorised prosecutor takes over full responsibility for further prosecution, regardless who was the leader of the preliminary investigation.
The suspect may be charged in court with an offence only if there are sufficient reasons for the charge (ch. 23 sect. 2 CJP). This rule is interpreted in such a way that the prosecutor has to have objective and reasonable reasons to believe that the court will convict the accused. Groundless prosecution in court is an offence according to the Swedish CC (ch. 15 sect. 5 CC).
Pursuant to the ch. 20 sect. 6 CJP, the prosecution service is obliged to prosecute all offences that are subjected to public prosecution. It means that if a person is suspected of committing more than one offence, the prosecutor has no possibility to restrict the charge to some of the offences only. Only if there are prerequisites present in the case, that make it possible to withdraw preliminary investigation according to ch. 23 sect. 4a, or to waive prosecution pursuant to ch. 20 sect. 7 CJP (see above in Chap II), the suspect does not need be charged with the offence in question. The same is true, of course, if a public prosecutor himself imposes a penalty on the suspect.
Once the charge has been brought in court, the main rule is that the charge must not be changed (ch. 45 sect. 5 CJP). However, the prosecutor may extend the charge against the accused with other offences, if the court finds it appropriate with respect to the state of the investigation and other circumstances. It is not considered to be a change of the charge, if the prosecutor restricts the charge, if he changes the legal qualification of the act, or if he refers to some new facts in order to back up his charge (ch. 45 sect. 5 CJP).
The court may never change the prosecutors´ charge in any respect.
The public prosecutor keeps his position of dominus litis also during the trial in the court, up to the moment the judgment has been passed (ch. 20 sect. 9 CJP). Before that point, the prosecutor has the possibility to withdraw the charge and return the case to the stage of preliminary investigation, or to terminate prosecution. However, if the prosecutor has decided to withdraw the charge, it does not mean that prosecution in court has to be terminated. Under certain preconditions, the injured party has the right to take over and continue prosecution (ch. 20 sect. 9 CJP).
The parties in trial
Formally, the prosecutor has the same position of a party in trial as the accused and his defendant.
The position of the victim depends on whether the victim has announced that he will assist the prosecutor in his capacity of party in trial or not. If the victim assists the prosecutor, he takes also a position of party in trial and has, in principle, with some minor modifications, the same rights as the prosecutor. As mentioned above, if the prosecutor decides on withdrawing prosecution in court, the injured party may take over and continue it. The rights of party in trial include also the right to appeal against the judgment.
It should be mentioned, that in practice, the cases where the injured party make use of its right to take over the prosecution in court are very rare.
Hearing of evidence
The Swedish court trial differs from trials prevailing on the European continent and is more similar to the Anglo-American type of trial. Parties in the Swedish criminal trial are considerably more active during hearing of evidence, than is usual on the European continent. Consequently, the Swedish judges are rather inactive as far as the seeking of truth about the offence under prosecution is concerned.
The prosecutor, when he brings a charge against the suspect in court, has to, among others, describe the criminal act he charges the suspect with, and indicate the evidence that prove his statements (ch. 45 sect. 4 CJP). The prosecutor is also obliged, if requested to do so by the victim of the crime, to take into court the action of the injured party concerning compensation of damages and the appropriate evidence (ch. 22 sect. 2 CJP).
Proceedings of hearing evidence vary depending on the kind of evidence. Documents and other written evidence are normally taken up by the court, regardless which of the parties has suggested it. If the parties admit it, it is not necessary to read the written evidence in court (ch. 46 sect. 7 CJP).
The examination of witnesses in court is regulated in ch. 36 CJP. Pursuant to sect. 17, the party that has suggested the particular witness should start the examination of a witness. (However, the court may decide on another proceeding.) After the examination has been finished, the opposite party has the right to cross-examine. If the opposite party is missing or there are other reasons justifying it, the cross-examination may be conducted by the court. After cross-examination both parties, as well as the court, have the right to ask the witness other questions. The party, which has suggested the witness, begins with this part of the witness examination.
The same rules as those applying to witnesses are applied by interrogation of the accused and the injured party who has not taken action concerning compensation of damages. However, as far as the accused is concerned, the court should normally start the interrogation of this person, and after that the prosecutor should take over the interrogation (ch. 37 sect. 1 CJP). Then, cross-examination by the defender may take place.
Cross-examination is not applied by testimony of the expert witnesses. If an expert witness takes part in the trial and personally presents his opinion, the court, if any, conducts the interrogation. With permission from the court, the parties may put questions to the expert witness (ch. 40 sect. 10 CJP).
The closing speech of the parties in a trial is regulated only in passing in the procedural code. According to ch. 46 sect. 10 CJP, the parties, after hearing of evidence, may state what they consider necessary in order to conclude their standpoints in the trial.
There are no guidelines or instructions published within the public prosecu¬tion service that would give any directions to the prosecutors as regards this particular question. Thus, the following description of this issue is a description of practice in the Swedish courts. This practice is relatively stable and unified throughout the country.
Normally, a public prosecutor gives his closing speech immediately after the hearing of evidence, before the defender (or the accused). He sums up the evidence and expresses his opinion about the legal qualification of the offence in question. The regular part of the closing speech is the prosecutor’s opinion as regards the appropriate sentence the court should impose on the convicted. Owing to the fact that the public prosecutor is obliged to take action on behalf the injured party, if the party requests it, frequently a major part of the closing speech is devoted to the opinion of the prosecutor as regards compensation of damages.
Normally, the victim of the crime, when party in trial, gives a closing speech after the prosecutor but before the defense. It is worth noticing, that, recently, a new phenomenon has appeared in legal practice, concerning the role of the injured party. Before, the closing speech of the injured party used to be very short, and, in principle, supportive of the prosecutor. This still holds true, in general. However, in a few spectacular cases, closely followed by media, the injured parties held very emotional, but also carefully prepared speeches, in which they expressed not only feelings, but also their opinions about the sentences and other issues. Different from what happened before, the role of the injured party has become the focus of public debate, and very different opinions have been voiced.
The court is not bound by the opinion of the prosecutor.
The Role of the Public Prosecutor in Court
Bringing the case to court
It has already been said that only the public prosecutor – with a few exceptions – is authorised to bring a case to court. The first step in this proceeding, after the preliminary investigation has been closed, is to decide, whether to prosecute in court or not (ch. 23 sect. 20 CJP). At this stage, the authorised prosecutor takes over full responsibility for further prosecution, regardless who was the leader of the preliminary investigation.
The suspect may be charged in court with an offence only if there are sufficient reasons for the charge (ch. 23 sect. 2 CJP). This rule is interpreted in such a way that the prosecutor has to have objective and reasonable reasons to believe that the court will convict the accused. Groundless prosecution in court is an offence according to the Swedish CC (ch. 15 sect. 5 CC).
Pursuant to the ch. 20 sect. 6 CJP, the prosecution service is obliged to prosecute all offences that are subjected to public prosecution. It means that if a person is suspected of committing more than one offence, the prosecutor has no possibility to restrict the charge to some of the offences only. Only if there are prerequisites present in the case, that make it possible to withdraw preliminary investigation according to ch. 23 sect. 4a, or to waive prosecution pursuant to ch. 20 sect. 7 CJP (see above in Chap II), the suspect does not need be charged with the offence in question. The same is true, of course, if a public prosecutor himself imposes a penalty on the suspect.
Once the charge has been brought in court, the main rule is that the charge must not be changed (ch. 45 sect. 5 CJP). However, the prosecutor may extend the charge against the accused with other offences, if the court finds it appropriate with respect to the state of the investigation and other circumstances. It is not considered to be a change of the charge, if the prosecutor restricts the charge, if he changes the legal qualification of the act, or if he refers to some new facts in order to back up his charge (ch. 45 sect. 5 CJP).
The court may never change the prosecutors´ charge in any respect.
The public prosecutor keeps his position of dominus litis also during the trial in the court, up to the moment the judgment has been passed (ch. 20 sect. 9 CJP). Before that point, the prosecutor has the possibility to withdraw the charge and return the case to the stage of preliminary investigation, or to terminate prosecution. However, if the prosecutor has decided to withdraw the charge, it does not mean that prosecution in court has to be terminated. Under certain preconditions, the injured party has the right to take over and continue prosecution (ch. 20 sect. 9 CJP).
The parties in trial
Formally, the prosecutor has the same position of a party in trial as the accused and his defendant.
The position of the victim depends on whether the victim has announced that he will assist the prosecutor in his capacity of party in trial or not. If the victim assists the prosecutor, he takes also a position of party in trial and has, in principle, with some minor modifications, the same rights as the prosecutor. As mentioned above, if the prosecutor decides on withdrawing prosecution in court, the injured party may take over and continue it. The rights of party in trial include also the right to appeal against the judgment.
It should be mentioned, that in practice, the cases where the injured party make use of its right to take over the prosecution in court are very rare.
Hearing of evidence
The Swedish court trial differs from trials prevailing on the European continent and is more similar to the Anglo-American type of trial. Parties in the Swedish criminal trial are considerably more active during hearing of evidence, than is usual on the European continent. Consequently, the Swedish judges are rather inactive as far as the seeking of truth about the offence under prosecution is concerned.
The prosecutor, when he brings a charge against the suspect in court, has to, among others, describe the criminal act he charges the suspect with, and indicate the evidence that prove his statements (ch. 45 sect. 4 CJP). The prosecutor is also obliged, if requested to do so by the victim of the crime, to take into court the action of the injured party concerning compensation of damages and the appropriate evidence (ch. 22 sect. 2 CJP).
Proceedings of hearing evidence vary depending on the kind of evidence. Documents and other written evidence are normally taken up by the court, regardless which of the parties has suggested it. If the parties admit it, it is not necessary to read the written evidence in court (ch. 46 sect. 7 CJP).
The examination of witnesses in court is regulated in ch. 36 CJP. Pursuant to sect. 17, the party that has suggested the particular witness should start the examination of a witness. (However, the court may decide on another proceeding.) After the examination has been finished, the opposite party has the right to cross-examine. If the opposite party is missing or there are other reasons justifying it, the cross-examination may be conducted by the court. After cross-examination both parties, as well as the court, have the right to ask the witness other questions. The party, which has suggested the witness, begins with this part of the witness examination.
The same rules as those applying to witnesses are applied by interrogation of the accused and the injured party who has not taken action concerning compensation of damages. However, as far as the accused is concerned, the court should normally start the interrogation of this person, and after that the prosecutor should take over the interrogation (ch. 37 sect. 1 CJP). Then, cross-examination by the defender may take place.
Cross-examination is not applied by testimony of the expert witnesses. If an expert witness takes part in the trial and personally presents his opinion, the court, if any, conducts the interrogation. With permission from the court, the parties may put questions to the expert witness (ch. 40 sect. 10 CJP).
The closing speech of the parties in a trial is regulated only in passing in the procedural code. According to ch. 46 sect. 10 CJP, the parties, after hearing of evidence, may state what they consider necessary in order to conclude their standpoints in the trial.
There are no guidelines or instructions published within the public prosecu¬tion service that would give any directions to the prosecutors as regards this particular question. Thus, the following description of this issue is a description of practice in the Swedish courts. This practice is relatively stable and unified throughout the country.
Normally, a public prosecutor gives his closing speech immediately after the hearing of evidence, before the defender (or the accused). He sums up the evidence and expresses his opinion about the legal qualification of the offence in question. The regular part of the closing speech is the prosecutor’s opinion as regards the appropriate sentence the court should impose on the convicted. Owing to the fact that the public prosecutor is obliged to take action on behalf the injured party, if the party requests it, frequently a major part of the closing speech is devoted to the opinion of the prosecutor as regards compensation of damages.
Normally, the victim of the crime, when party in trial, gives a closing speech after the prosecutor but before the defense. It is worth noticing, that, recently, a new phenomenon has appeared in legal practice, concerning the role of the injured party. Before, the closing speech of the injured party used to be very short, and, in principle, supportive of the prosecutor. This still holds true, in general. However, in a few spectacular cases, closely followed by media, the injured parties held very emotional, but also carefully prepared speeches, in which they expressed not only feelings, but also their opinions about the sentences and other issues. Different from what happened before, the role of the injured party has become the focus of public debate, and very different opinions have been voiced.
The court is not bound by the opinion of the prosecutor.
