Prosecutor
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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.
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[edit] Common law jurisdictions
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."
[edit] 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.
[edit] India
In India a Public Prosecutor is the equivalent of the US District Attorney. The Public Prosecutor represents the state in court.
[edit] 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, Prosecuting Attorney (in Michigan, Indiana, and West Virginia), County Prosecutor, State Attorney, State's Attorney, State Prosecutor, Commonwealth's Attorney (in Virginia and Kentucky), District Attorney, District Attorney General (in Tennessee), City Attorney, City Prosecutor, Circuit Attorney (in Missouri) or U.S. Attorney) and may be either appointed or elected. This should not be confused with Corporation Counsel, who typically handles only civil matters involving monetary damages, and does not handle criminal prosecutions.
[edit] Canada
In Canada the term for a Prosecutor is Crown Attorney or Crown Counsel.
[edit] 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.
[edit] Civil law jurisdictions
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.
[edit] Brazil
In Brazil, the public prosecutors form a body of autonomous magistrates - the Ministério Público - working both at the federal and state level. The procuradores da República - federal prosecutors - are divided in three ranks, according to the jurisdiction of the courts before which they officiate, thus the "procuradores da República" (federal prosecutors) officiate before single judges and lower courts, "procuradores regionais da República" (prosecutors who officiate before federal appellate courts)and "subprocuradores gerais da República" (prosecutors who officiate before the superior federal courts). 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 usually divided in "promotores de Justiça substitutos" (substitute state prosecutors), "promotores de Justiça" (state prosecutors), which officiate before the lower courts, 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, as such 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 acquit him. The prosecutor's office has always the last word on whether criminal offenses will or will not be charged, with the exception of those 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 indeed 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 directing the police in their investigations. 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 Supremo Tribunal Federal. Beside their criminal duties, Brazilian prosecutors are among those authorized by the Brazilian constitution to bring action against private individuals, commercial enterprises and the federal, state and municipal governments, in the defense of minorities, the environment, consumers and the civil society in general.
[edit] 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.
[edit] 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.
[edit] Japan
In Japan, public prosecutors (検察官 kensatsu-kan?) are professional officials who have considerable powers of investigation, prosecution, superintendence of criminal execution and so on. Prosecutors can direct police for investigation purposes and sometimes investigate directly. Only prosecutors can prosecute criminals in principle and prosecutors can decide to prosecute or not. High-ranking officials of the Ministry of Justice are largely prosecutors.
[edit] Poland
The highest ranking prosecutor office in Poland is the Public Prosecutor General. Below him is the National Public Prosecutor's Office and Chief Military Prosecutor Office.
[edit] Switzerland
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Bernard Bertossa was public prosecutor of Geneva from 1990 to 2002.
[edit] Socialist law jurisdictions
A Public Procurator is an office used in Socialist judicial systems that in some ways correspond to that of a public prosecutor in other legal systems, but with more far reaching responsibilities such as handling investigations otherwise performed by branches of the police. Conversely the policing systems in socialist countries, such as the Militsiya of the Soviet Union, were not aimed at fulfilling the same roles as police forces in Western democracies.
[edit] Soviet Union
In the Soviet Union, the highest functionary of the Office of the Public Procurator was known as "Public Procurator" from 1936. After 1946 the office was called Procurator General of the USSR.
[edit] People's Republic of China
A Public Procurator is a position in the People's Republic of China, analogous to both detective and public prosecutor. Legally they are bound by Public Procurators Law of the People's Republic of China. According to Article 6 The functions and duties of public procurators are as follows:
- Supervise the enforcement of laws according to law
- Public prosecution on behalf of the State
- Investigate criminal cases directly accepted by the People's Procuratorates as provided by law
- Other functions and duties as provided by law
[edit] Vietnam
The Supreme People's Procuracy is the highest office of public procurators in Vietnam.
[edit] Institutional independence
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, such as Brazil, the hierarchy of prosecutors are installed with the same (or nearly the same) liberties 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 independent prosecution becomes the fourth column in the architecture of power separation, besides the legislative, executive and judicial 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 parliamentary 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. In Brazil there is a similar provision which transfers the power to prosecute to the crime victim if, and only if, the prosecutor in charge of the case fails to make a decision to file or drop the charges in the deadline established by the penal procedure code. Although contested by some, this provision is often thought of as a welcomed form of public control of the prosecutor's office activities.
[edit] Bibliography
- MAZZILLI, Hugo Nigro.Regime Juridico do Ministério Público 5ª edição, São Paulo: Saraiva, 2001.
- 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, Dublin http://www.larchivio.org/xoom/raoulirish.htm
http://www.larchivio.com/diritto.htm
[edit] External links
- www.prosecutor.info indexes almost 2,900 prosecutor web sites throughout the USA and other countries.
