The Role of the Prosecutor in Court
The Role of the Prosecutor in Court
The public prosecutor’s task in trial is to guarantee a state charge in all criminal cases except private complaints, which are being processed by the judge. Criminal offences that are to be examined after private complaints are for example, deliberate light bodily injuries, defamation, and bringing into disrepute. To produce a charge is the exclusive duty of the public prosecutor. Trial investigation constitutes an examining of the evidence collected during the pre-trial investigation by the court. According to the principle of immediacy as expressed in the CCP, at the court of first instance the circumstances of the case should be investigated directly, this means that victims and witnesses should be interrogated, material evidence should be examined, and protocols and other documents should be read.
Trial investigation takes place within the limits set by the charge, which has been determined by the public prosecutor during pre-trial investigation. At the trial stage, the amendment of the charge to a more serious offence or crime is not permitted.
The trial investigation commences when the public prosecutor reads the indictment. After that it is ascertained whether the accused has become acquainted with the indictment, the nature of charge is clear to him, and he declares himself guilty. Subsequently, the order of examination of the evidence is decided.
Interrogation of the person on trial begins with the interrogation by the chairperson of the hearing. After that the accused is interrogated by other participants in the case in the following order: public prosecutor, victim, civil claimant, civil defendant, and defendant.
The interrogation of witnesses and the victim starts with a clarification by the chairperson of the hearing about the relationship of the person who is interrogated with the person on trial and the victim. He is invited to testify about all circumstances of the case known to him. There is possibility to confront persons both while pre-trial investigation and trial investigation, if in their previous evidence of case circumstances there are fundamental contradictions. After the examination of the evidence, there are trial debates. The first person to speak is the public prosecutor, then the victim, the civil claimant, the civil defendant, and the defender of the person who is on trial or the person who is on trial, if the trial takes place without the presence of the defender.
The examination of evidence at the court of first instance does not take place in the following cases:
- in expedited proceedings, when the person on trial has pleaded guilty and the alleged offence can be dealt with in such proceedings;
- in cases concerning criminal offences, less serious crimes and serious crimes to which the expedited proceedings above do not apply. Non examination of evidence in this case can be allowed on the condition, that the person on trial pleads guilty, and the judge has verified before the trial that the evidence presented in the case file proves his guilt; and
- when an agreement has been
concluded by the prosecutor and the parties in the pre – trail process (see above).
In hearings of the court of appeal or the court of second instance, witnesses, experts, and specialists who have taken part in the proceedings at the court of first instance, as well as the accused and the victim who have not appealed against a sentence, are only summoned if the court considers it necessary. On the other hand, the supreme court of cassation and the court of third instance do engage in an examination of evidence, but only to evaluate whether courts of lower instances have rightly applied substantive and procedural law provisions.
When in a criminal case the court concludes that during the pre – trail investigation process rights of persons have been violated or other violations of law have been committed, it can, when announcing the verdict, adopt a resolution informing inquiry offices and the prosecutor’s office thereof.
In his closing speech the public prosecutor presents his arguments, states his conclusions, and formulates his proposals on how the case should be dealt with by the court.
The main parts of the indictment are:
- a description of the committed criminal offence as proven;
- an analysis of the gathered evidence in the criminal case;
- a justification for the legal qualification of the criminal offence;
- circumstances which should be taken into account when determining punishment; and
- proposal for type and amount of punishment, adapted to the circumstances of the case and the person on trial.
However, when deciding upon the verdict, the court is not bound by the decision of the public prosecutor in its qualification of the criminal offence or its decision on the type and amount of punishment. The court can change the qualification of the criminal offence in the charge at its own initiative, but only to a less serious criminal offence.
When determining the type and amount of punishment, the court is free to impose a penalty which is more or less severe than the punishment proposed by the public prosecutor. For instance, if the public prosecutor has pleaded to a sentence with fine, the court can impose a deprivation of liberty, or vice versa, if the public prosecutor has pleaded to impose a deprivation of liberty, the court can decide to impose a fine.
When the court of appeal or the court of second instance is determining punishment, the following restrictions have been determined. The court can apply law for a more serious criminal offence than the offence examined by the court of first instance only when the public prosecutor has pleaded accordingly in the appeal request. Imposing a more severe punishment on the accused at the court of appeal is admissible only when the public prosecutor has pleaded in favour of this in court.
The law and the internal regulations of the prosecutor’s office regulate the way in which the public prosecutor can change the charge. The public prosecutor has a right to change the charge in favour of the person on trial, or to withdraw the charge in court if there is a reason or ground for doing so.