Prosecutor
The
prosecutor is the chief legal representative of the prosecution in countries adopting the
common law adversarial system or the
civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case against an individual suspected of breaking the law in a
criminal trial.
Prosecutors are typically
lawyers who possess a
university degree in law and are recognized as legal professionals by the court in which they intend to represent the state. They usually only become involved in a criminal case once charges need to be laid. They are typically employed by an office of the government with safeguards in place to ensure such an office can successfully pursue the prosecution of government officials. Often multiple offices exist in a single country due to the various legal
jurisdictions that exist.
Being backed by the power of the state, prosecutors are usually subject to special
professional responsibility rules in addition to those binding all lawyers as a whole. For example, in the
United States, Rule 3.8 of the
ABA Model Rules of Professional Conduct requires prosecutors to "make timely disclosure to the defense of all evidence or information ... that tends to negate the guilt of the accused or mitigates the offense."
Directors of Public Prosecutions
In
Australia,
Canada,
England and Wales,
Hong Kong,
Northern Ireland and
South Africa the head of the prosecuting authority is typically known as the
Director of Public Prosecutions and is appointed, not elected. A DPP may be subject to varying degrees of control by the
Attorney-General, usually by a formal written directive which must be published.
In Australia at least, in the case of very serious matters, the DPP will be asked by the police during the course of the investigation to advise them on sufficiency of evidence and may well be asked, if he or she thinks it proper, to prepare an application to the relevant court for search, listening device or telecommunications interception warrants
More recent constitutions, such as
South Africa's or
Fiji's tend to guarantee the independence and impartiality of the DPP.
United States
In the
United States the director of any such offices may be known by any of several names depending on the legal jurisdiction (e.g. County Attorney, County Prosecutor, State Attorney,
State's Attorney, State Prosecutor,
Commonwealth's Attorney (in Virginia and Kentucky),
District Attorney, City Attorney, City Prosecutor or
U.S. Attorney) and may be either appointed or elected.
Scotland
Though
Scots law is a mixed system, its heritage in
civil law leads to a situation more reminiscient of a
civil law jurisdiction. Here all prosecutions are carried out by
Procurators Fiscal and
Advocates Depute on behalf of the
Lord Advocate, and, in theory, they can direct investigations by the
police. In very serious cases a
Procurator Fiscal,
Advocate Depute or even the
Lord Advocate may take charge of a police investigation. It is at the
discretion of the
Procurator Fiscal,
Advocate Depute or
Lord Advocate to take a prosecution to court and to decide on whether to prosecute it under
solemn procedure or
summary procedure. Other remedies are open to a prosecutor in Scotland, including
fiscal fines and non-court based interventions such as
rehabilitation and
social work. All prosecutions are handled within the
Crown Office and Procurator Fiscal Service. Procurators fiscal will usually refer cases involving minors to
Children's Hearings, which are not courts of law, but a panel of lay members empowered to act in the interests of the child.
Prosecutors are typically
civil servants who possess a
university degree in law and additional training in the administration of justice. In some countries, such as
France, they belong to the same
corps of civil servants as the judges.
Brazil
In
Brazil, the public prosecutors form a body of autonomous magistrates working both at the federal and state level. The procuradores da República - federal prosecutors - are divided in three ranks "procuradores da República" (federal prosecutors), "procuradores regionais da República" (prosecutors who officiate before federal appeals courts), "subprocuradores gerais da República" (prosecutors who officiate before the superior federal courts), according to the jurisdiction of the courts before which they officiate. The Procurador Geral da República heads the federal body and tries cases before the Supremo Tribunal Federal (STF), Brazil's highest court, in charge of judicial review and the judgment of criminal offenses perpetrated by federal legislators, members of the cabinet and the President of Brazil.At the state level, the career is divided in "promotores de Justiça substitutos" (substitute state prosecutors), "promotores de Justiça" (state prosecutors) and "procuradores de Justiça" (prosecutors officiating before the states' court of appeals). There are also military prosecutors whose career, although linked to the federal prosecutors, is divided in a manner similar to state prosecutors.In Brazil the prosecutors' main job is to promote justice, which means they have the duty of not only trying criminal cases, but, if during the trial they become convinced of a defendant's innocence, requesting the judge to aquitt him/her. The prosecutors office has always the last word on whether criminal offenses will or will not be charged, with the exception of some rare cases in which Brazilian law allows for private prosecution. In such cases, the prosecutor will officiate as
custos legis, being responsible to ensure that justice is carried out.Although empowered by law to do so, prosecutors conduct criminal investigations only in major cases, usually envolving police or public officials' wrongdoings. Also, they are in charge of supervising police work and ordering the police to take the measures seemed needed by the prosecution to conclude the inquiries. The power of individual prosecutors to hold criminal investigations is still controversial and, although massively supported by judges, prosecutors and the general population, it is being contested before the Brazilian constitutional court, STF.
France
In
France, the prosecutor, or
Procureur de la République (or
Procureur Général in an
Appeal Court or
Avocat Général in the
Court of Cassation) is assisted by deputies (
substituts). He opens
preliminary enquiries, and if necessary asks for the nomination of an
investigating magistrate (a
Juge d'Instruction) to lead a
judiciary information. In the case of an information led by a judge, the prosecutor does not lead the enquiries, but simply lays down the scope of the crimes that the judge and law enforcement forces investigate upon; he may, like defense attorneys, request or suggest further enquiries.During a
criminal trial, the prosecutor has to lay the case in front of the trier of fact (
judges or
jury). He generally suggests a certain sentence, which the court has no obligation to follow — the court may decide on a higher or lower sentence. The
procureur has also some other duties regarding more generally the administration of justice.
Germany
In
Germany, the
Staatsanwalt (literally 'state attorney') does not just have the "professional responsibility" (as mentioned above) not to withhold exculpatory information, but is required by law to actively determine such circumstances.
Bernard Bertossa was public prosecutor of
Geneva from 1990 to 2002.
In many countries, the prosecutor's administration is directly subordinate to the executive branch (e.g the US Attorney General is a member of the President's cabinet). This relationship theoretically and in some cases practically leads to situations, where the public accuser will either falsely charge people (in
Putin's
Russia) or refuse to charge arrested persons at all (to keep them in protracted legal limbo as in the case of
Guantanamo Bay Camp X-ray), if that serves political aims. Many thinkers feel such outcomes are incompatible with basic
human rights and
constitutional ideals.
In a smaller number of countries, the hierarchy of prosecutors are installed with the same (or nearly the same) liberites the judges traditionally enjoy. They are only responsible to the parliament and the chief prosecutor is usually elected for a long period (seven years typically) or even a lifetime. In terms of political theory, this would mean the idependent prosecution becomes the fourth column in the architecture of power separation, besides the
legislative,
executive and
judical branches.
In practice, such establishment often results in heated political debates, as new governments regularly accuse the reigning chief prosecutor of being "informally grateful" to the political opposition (i.e. the former parlamentary majority which elected him/her for a period extending multiple parliamentary cycles). In
Hungary, the new government created the method of "private accusing" in
2003 as a response, meaning person(s) or a private entity can directly petiton the courts to hold trial against someone they feel is guilty of a crime, should the prosecutor refuse to indict him/her. If a reviewing judge agrees with the private accusing, a judge selected from another court district will hold the trial and force a prosecutor to represent the charges. Such creations may hurt the scheme of
separation of powers more than they remedy problems of alleged or existing bias.
* Raoul Muhm , Gian Carlo Caselli (Hrsg.) : Die Rolle des Staatsanwaltes Erfahrungen in Europa - Il ruolo del Pubblico Ministero Esperienze in Europa - Le role du Magistrat du Parquet Expériences en Europe - The role of the Public Prosecutor Experiences in Europe - Vecchiarelli Editore Manziana (Roma) 2005 ISBN 88-8247-156 - X
* Raoul Muhm : The role of the Public Prosecutor in Germany in : The Irish Jurist | Volume XXXVIII | New Series 2003 , The Law Faculty, University College, Dublinhttp://www.larchivio.org/xoom/raoulirish.htm
http://www.larchivio.com/diritto.htm
*
www.prosecutor.info indexes almost 2,900 prosecutor web sites throughout the USA and other countries.
