107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

THE ROLE AND FUNCTION OF PROSECUTION
IN CRIMINAL JUSTICE
Patricia Cordero Vargas*
PREFACEI. INTRODUCTION

The main topic “The Role and Functionof Prosecution in Criminal Justice”,
generates a big general interest, and in myparticular case, I feel drawn to the chance
to obtain valuable knowledge which will
help me to better perform my duties.
I have been working in the criminal
prosecution area for seventeen years.
Sometimes I have felt very satisfied byhaving cooperated in serving justice.
However, on other occasions, I have felt asour taste in realizing that the system isinsufficient and that some transgressors
triumph because their crime is not proven.
I firmly believe that disappointments
make us stronger, and also, that we neverlose courage in our obligation to cooperatein punishing the offender, releasing the
innocent and transforming our society into
a better one each day.
Thanks to the Government of Japan, to
the Japan International Cooperation
Agency and to the Asia and Far East
Institute for the Prevention of Crime andthe Treatment of Offenders (UNAFEI) for
giving me—on behalf of my country—the
opportunity of improving our knowledge inthe hope that our criminal justiceadministration system could be a source ofpride for Costa Ricans.
Patricia Cordero Vargas

Modern societies observe with alarm andconsternation an increase in crime, not onlyin quantity but also in quality. More andmore, a greater degree of violence is evident
in the offender’s behavior. It is enough toopen the newspapers pages and observethat more frequently than expected there
is a youngster who kills an elderly woman
just to steal a few coins, a bank guardian
has been murdered during an assault, or achild abused by his teacher. Faced withthis situation, state intervention becomes
imperative. By means of the penalties
foreseen in the laws, the state is trying
discourage this damaging behavior from
affecting the peaceful coexistence of society.
It is true that it is the state which
possesses the function of detecting,prosecuting and judging crimes, because it
is impossible nowadays to think in terms
of private revenge. However, there must
be a balance between the penalty or
punishment imposed on the transgressor
and the absence of abuse of public power.
To avoid abuse, the state must have an
instrument which is subject to the law (theLegality Principle). It is known as the
Criminal Procedure Law. In order to findthe origins of modern procedure law, wemust go back to the French Revolution andthe ideas of the thinkers who preceded it.
The Republican Movement wasestablished at the end of the XVIII century
during the French Revolution. This
movement fought very hard in favor of thedivision of powers that prevented theestablishment of an undesirable
concentration of powers in the state.

* Public Prosecutor, Ministry of Public, Costa Rica.

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In relation to justice administration, thebig change of that period was the abolitionof cruel and abusive inquisitorial
procedures in which an anonymous
accusation was enough to start a procedureagainst any person, and could even finish
in death. Basically, the judgement
originated from apparent transgressions
from moral or religious norms, and ofcourse, this was a valuable instrument ofpolitical control allowing the king and his
followers to eliminate anybody who
disagreed with his dispositions.
The Compound (Mixed) Systemappeared in 1808, with the promulgationof the French “Code d’instruction
criminelle”. This system has elements fromthe accusatorial system, takes the mostvaluable part of the inquisitorial system,and has the objective of proceeding theprocess in two different stages: basically,
one is written, and the other is oral anddefinite, i.e., the trial.
This system, which has been in force inthe majority of the Latin Americancountries—is also ruling today in Costa
Rica, and an examining judge (known as
Juez de Instrucción) is in charge of theinvestigation.
The character of a judge in charge of theinvestigation is like a viceroy taken fromthe authoritarian ideology and the power
concentration which ruled before theFrench Revolution. The modern tendencies
have demonstrated the inconveniences ofthis procedure, since the investigation in
the charge of a judge is rigid, slow anddifferent in each jurisdiction.
The nature of today’s crime requires aquick and effective procedure that responds
to a uniform strategy, mainly to fight nonconventional crime—in which big criminalorganizations are involved—which
possesses many resources, and, therefore,
is hard to fight.
We—those who fight against crime—
cannot waste resources in pursuing
irrelevant matters, and we must direct our180efforts against behaviors that seriously
injure society. It is desirable to find aunified strategy to fight crime in all modern
societies, as in Italy which developed aunified front to attack the Mafia.
Besides the inconveniences mentioned
about the investigation by the examining
judge, it is pointed out that the confusionof duties performed by just one person is
not so desirable. The judge has theobligation of watching over the individual’s
rights, and at the same time, he is obligatedto gather evidence against the same
individual. Consequently, it is very difficult
to keep objective and impartial, and it ishighly probable that in a certain momentof the investigation, the judge—as a humanbeing—could take sides in one or anothersense.
To avoid those kinds of situations, thenew procedure law tries to entrust theinvestigation to an independent entity not
subjected to the rigidity imposed by thejurisdiction, which also meets the
expectations of efficiency in the preparationof the penal action. Moreover, this could
facilitate achieving more control between
investigators and judges where the systemof checks and balances, taken from therepublican system of government, resulting
in the raising of the state “ius puniendi”.
The investigation assigned to aprosecutor allows each person to assume
their corresponding role in the process: thejudge, watches out for the fulfillment of its
legality and consequently, that the rightsof the parties are protected, including, ofcourse, the accused; and the prosecutor,
acting on behalf of society, collects all
evidence that links the accused to the crimeand in general, fights crime. Criminal
investigation strengthens the principles oforal and immediate evidence, because
when appearing in court, the prosecutor
knows each and every piece of evidence thatwill serve as a basis for the indictment; andthe judge will know of them only whenpresented at trial.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Another advantage of the prosecutor’s
investigation is that it diminishes delaysin the administration of justice byeliminating the obligation of a written andformal procedure, which on many occasions
forced persons to face a long process:months or even years.
The flexibility in the investigation byprosecutors will allow them to focus theirattention on the really damaging behaviors
of social groups. As it is pointed out on
many occasions, criminal activity
surpasses the community’s ability to fight.
No punitive system can attack every crimecommitted against it. Consequently, there
appears the necessity to create a selection
system that permits the screening of thestate punitive function, whereby serious
offenses are punished, and alternatives aresought which discourage petty conduct that
disrupts normal coexistence without
requiring direct intervention from thestate.
It is true that when we talk about an
investigation entrusted to a prosecutor, we
assume that he or she must be objective
and neutral. He must respect all the rights
and guarantees of the defendant and theparties must be recognized by the politicalconstitution and international law.
Besides, it is necessary that theprosecutor keep excellent relations with thepolice, since prosecutors essentially link
judges and police.
Another important relationship to be
kept is the one between the prosecutor andthe victim, given that the latter charges theprosecutor with the rescue of his rights. To
achieve this, the prosecutor in charge of thecase must make the best use of his humanand material resources in order to locate
the corresponding proof and present it to
the court in an adequate way. Afterwards,
the judge is responsible for the final
judgement.
Costa Rica, a democratic republic locatedin the heart of Latin America, counts witha Public Ministry assigned to the Judiciary

Power. It functions since 1973 with a mixed
criminal procedure system, and it has twovery distinct stages: the first one, almost
totally written, encharged to an examining
judge, and the second one, oral, realized at
the public trial.
The Public Ministry is headed by theProsecutor General and the Attached
Prosecutor General, both appointed by theSupreme Court of Justice. The prosecution
personnel is appointed by the Prosecutor
General.
Only public prosecutors have theauthority to initiate prosecution, andprivate prosecution is not allowed.
II. BRIEF VIEW OF THE CURRENTLEGISLATIONIn Costa Rica, public prosecutors handle
two types of offenses called “public action
crimes”. The first encompasses those
offenses which are punishable by a fine or
three years’ imprisonment. The second
consists of those offenses punishable bymore than three years’ imprisonment. At
the trial stage, the former are handled bya single judge once the prosecutor has
finished the investigation.
For those serious crimes punishable bythree or more years of imprisonment, adifferent procedure called “formal
instruction” in the charge of an examining
judge is necessary. Specifically, when an
offense is reported, all initial investigations
must be done by the police. When they arefinished, the file must be delivered to theprosecutor, who will make a “Requirementof Formal Instruction” to the examining
judge in accordance with Article 170 of the
Criminal Procedure Code. The examining
judge will handle the matter by receiving
the statements of the accused and thewitnesses, and requesting that thetechnical proof and any other evidence that
he deems necessary be provided. At thisstage, the function of the prosecutor is justto be vigilant that all procedures are correct

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and that the necessary evidence is includedin the case file. If the prosecutor disagrees
with the judge, he is allowed to appeal to ahigher court. Once the investigation is
concluded, the examining judge delivers
the case file to the prosecutor, who will
make the indictment (C.P.C. art. 338). A
collegiate body of three judges then takes
cognizance of the matter for trial.
The trial stage is basically the same forthe two categories of crimes mentioned
above. First the indictment is read to thedefendant so that he or she can know thecontents of the accusation. Then thestatements of witnesses are received orally
and the documentary evidence are also
read (C.P.C. arts. 369 to 391). Once thisprocedure is concluded, the prosecutor andthe defense counsel will make the final oral
arguments, and then the final step is thesentence given by the tribunal.
III. THE NEW LEGISLATION
Starting January 1, 1998, the New
Criminal Procedure Code will be in force.
It is modern and inspired by the German
procedure ordinance and the procedurecodes of Guatemala, Italy and Portugal.
Now, the preliminary investigation of apenal action will be entrusted to the Public
Ministry.
This modern procedure law is structured
into three well-defined parts:
1. Preparatory. The main objective is
to collect the necessary elements formaking the indictment.
2. Intermediate. This part is assigned
to a judge who controls if theindictment is in order, it keeps theforms, and it contains enoughfundamentals to be viable.
3. Trial. At this stage, the issue willdefinitely be resolved, concluding if
the accusation of the prosecutor has
or not the right to be.
From these three parts, the first and thelast are the most important ones, and there

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is a big relation between them. This newchange has also imposed a big change ofminds of the members of the Public
Ministry.
Many prosecutors who have beenworking behind a desk up to now, mustleave their offices and investigate and workside by side with the police. The prosecutor
will no longer be a spectator waiting forthe evidence to be given by the police,rather he must personally direct theinvestigation, pointing out what could be
a necessary proof to solve a case (New
C.P.C. art. 62).
All of this ratifies the necessity—alreadymentioned—that the relations between theprosecutor and the police must be excellent
and respectful, because this is the only way
in which both could be efficient and worthyof mention.
The use of resources must be rationaland oriented towards fighting the acts that
actually injure the society. Also alternative
solutions must be sought like imposing
fines, community work or certain
obligations for those who disturb the social
peace, but who do not really commit
offenses that require strong punishment by
the state.
Undoubtedly, the new legislation poses
new challenges. We know that all changes
may present difficulties, but we have thehope that they will be surpassed. Also, weknow that we will adapt to this new formof crime fighting successfully, since we areconvinced that all human beings deserve a
better place to live.
The new code will greatly strengthen the
Public Ministry, and consequently, theAttorney General of Costa Rica, who is
responsible for establishing criminal policy.
Up to now, this office has taken an activerole in criminal policy.
The fact that the Costa Rican Public
Ministry is dependent of the Supreme
Court of Justice has prevented a truedevelopment of the procedure to be followed
in regard to criminal prosecution in the

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
heart of the entity in charge of it. There ismuch criticism about this dependence on
the Judiciary Power. Many jurists havepointed out the necessity of giving a
constitutional power to the Public Ministry,
and, at the same time, its own budget andfreedom to delineate the rules to befollowed in the country against the daily
increasing criminality, as it is in place inmany parts of the world.
However, the present reform to which I
refer above has not given the Public
Ministry such independence. Nonetheless,we think that in the near future theimminent need of cutting the ties between
the prosecution and the Supreme Court ofJustice will come. It is probable that thenext legal battle in our country will be
about this aspect.
It is important to point out that the 1998
Code will provide the Public Ministry withcertain powers previously not available.
Nowadays, penal action is obligatory. This
fact implies that there is no possibility ofnegotiation with the accused, andobviously, the investigation becomesdifficult because it is impossible to counton the testimony of some persons who know
criminal activity from the inside. The only
exception to this rule found today is as todrug matters, in which it is possible to plea
bargain when a subject who committed acertain kind of offence decides to giveinformation in exchange for less severe
treatment by the prosecutor.
Starting on January 1, 1998, it will bepossible to make certain negotiations inother types of offences, not only in mattersrelated to drugs. This will facilitate ourwork in the sense that the prosecution will
have a tool with which to screen some
important cases.
However, these negotiations are allowed
as to all offenses. The law specificallydelineates when such negotions are
permissible. Nonetheless, we consider thisa great advancement in regard to theadministration of justice.

Any proceedings that lead to a penal
prosecution will be subject to thesupervision of a judge, called a “Guarantees
Judge”, whose role is to ensure that anindividual’s fundamental rights arerespected. Similarly, some acts can only
be performed by the prosecutor with theprior authorization of the Guarantees
Judge, for example, the official entry intoa house.
This is due to the fact that our judicial
system is fairly protective of an individual’s
rights, and our Political Constitution
clearly establishes that certain rights canonly be altered by the intervention of ajudge of the Republic.
Another example of constitutional
protection is the obligation imposed on theState to prove, beyond a reasonable doubt,
the guilt of the accused. The “Innocence
Principle” prevents the inversion of theburden of the proof. However, as aconsequence, certain types of complex
investigations are difficult, like thoserelated to money laundering, a prevalentcrime nowadays.
Private property is very zealously
protected in our juridical system, and thus,
a judge’s intervention is necessary to
deprive somebody of his property.
Also, the deprivation of freedom is a very
restricted field, which can be ordered only
by a state judge. The Public Ministry may
only detain an accused for the limited
period of 24 hours, in addition to detention
at the investigation stage. Additionally ajudge’s order is necessary to keep theaccused in prison.
As can be seen, prosecutorial activity is
not so flexible, and it is under thepermanent control of the judicial
authorities. However, I believe that muchprogress has been with the new legislation.
I also believe that, after making somenecessary adjustments during the first
applications of the new procedure, theresults will be seen next year.

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IV. RELATIONSHIP WITH THE
POLICEA coordinated effort and good relations
between prosecutors and police officers willallow success both in investigations and,in particular, in fighting crime. Both
constitute the long arm of the law and how
it is materialized.
Costa Rica has a judicial police force that
also depends on the Judicial Power, but has
administrative independence. Under thepresent system, it is very common for thepolice officers to have direct relations withjudges, of whom they request different
orders. Moreover, whom the police tends
to occasionally inform first a judge, about
an offense and thereby relegates theprosecutor.
However, once the new law takes effect,
the police must first inform the prosecutorof all criminal acts, who will then set theguidelines to be followed in an investigation(N.C.P.C art. 283). Some police officers areworried about this, because suddenly
Public Ministry officials would be assumingroles that have not had before and for which
they may not be ready.
To address these concerns, prosecutors
have been working very hard to inform thepolice that they will continue with its
administrative role, and that the directionsof prosecutors are just for cases underinvestigation. Moreover, it is necessary tostrengthen the human relations between
both groups in order for each to performtheir duties under the best conditions ofgood fellowship and mutual cooperation.
V. RELATIONSHIP WITH THE
VICTIM
Finally, it seems appropriate to make a
few comments in regard to the victim, who
has been practically disregarded within thecriminal justice system.
Nowadays, when a victim or any otherperson reports a crime, he may be184requested on one or several occasions toprovide testimony during the investigation.
As the notion of private revenge becomesunacceptable, and the concept that thestate is the only entity authorized to punish
takes root, information to the victim isomitted. The victim is only called again
to render testimony during the trial andhas no right to dissent from what ishappening. This seemingly unfair
treatment has given rise to commentarythat the victim has been re-victimized by
the criminal justice system.
In modern times, “victimology” tries togive the victim back his rights, reminding
him that they had never been lost.
Victimology presumes that the victim
deposits his rights into the prosecutor’s
hands, and that the latter is obligated topreserve such rights, by informing thevictim and considering all aspects that thevictim wants to give testimony about,because, after all, he is the one who knows
up to what point the offence has affected
him.
VI. CONCLUSION
Nobody can deny that prosecutors in
Costa Rica face an important challenge not
only because the techniques developed bycriminals are more sophisticated each day,but also because the new procedure code
represents an opportunity to achieve thefair and efficient application of the law.
It is desirable that the changes
introduced in the legislation produce anefficient and high quality criminal justicesystem, where the right to defense can beplainly exerted by any of the parties, andwhere it is not forgotten that the state’s
punitive power is restricted and delegatedby the citizenry. Also, it must be used tostrengthen democracy and to improvecoexistence. However, it must never beused as an instrument of domination.