ANNUAL REPORT FOR 1997
andRESOURCE MATERIALSERIES No. 53

UNAFEI
Fuchu, Tokyo, Japan

February 1998

1

Toichi Fujiwara
Director
Asia and Far East Institutefor the Prevention of Crime andthe Treatment of Offenders(UNAFEI)
1-26, Harumi-cho, Fuchu, Tokyo 183-0057, Japan

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CONTENTS
INTRODUCTORY NOTE .................................................................... vii
PART ONEANNUAL REPORT FOR 1997
Main Activities of UNAFEI .................................................................. 3
UNAFEI Work Programme for 1998 ................................................ 15
Appendix ............................................................................................... 17

PART TWORESOURCE MATERIAL SERIES NO. 53
I. WORK PRODUCT OF THE 107TH INTERNATIONAL TRAINING COURSE“THE ROLE AND FUNCTION OF PROSECUTION IN CRIMINAL JUSTICE”
Remarks by Programming Officer .................................................. 35
Faculty Paper• The Criminal Justice System in Japan: Prosecution
by UNAFEI ....................................................................................... 39
Visiting Experts’ Papers• Some Aspects of French Penal Procedure
by Henri de Larosière de Champfeu (France) ............................ 59• The Development of the Prosecutor’s Jurisdiction in the Criminal
Justice System of Indonesia
by Antonius Sujata (Indonesia) .................................................. 68• The Characteristics of the Korean Prosecution System and theProsecutor’s Direct Investigation
by Lee, Jung-Soo (Republic of Korea)......................................... 83• Enhancement of the Rule of Law and Promotion of the Public
Interest: The Role and Function of the Prosecution System in
Singaporeby Francis Tseng (Singapore) ................................................... 103iii

• The Role and Function of Prosecution in Sri Lanka
by D.P. Kumarasingha (Sri Lanka) ......................................... 119• Thai Prosecutors and International Cooperation in Combating
Transnational Crime
by Dr. Kanit Nanakorn (Thailand)........................................... 131• The Role of the Prosecutor in the American Federal Criminal
Justice System
by Nora M. Manella (United States) ........................................ 137
Participants’ Papers• The Role and Function of Prosecution in Criminal Justice
by Pauline Christine Ngo Mandeng (Cameroon) ..................... 159• The Position and Role of Chinese Procuratorial Organs
in Criminal Justice
by Guan Fujin (China) ............................................................. 169• The Role and Function of Prosecution in Criminal Justice
by Patricia Cordero Vargas (Costa Rica) ................................. 179• The Role and Function of Prosecution in Criminal Justiceby Madan Lal Sharma (India) ................................................. 185• The Role and Function of the Indonesian Prosecution Service
in Criminal Justiceby Ersyiwo Zaimaru (Indonesia) .............................................. 201• The Role and Function of Prosecution in Criminal Justiceby Jonathan John Mwalili (Kenya) .......................................... 218• The Role and Function of Prosecution in Criminal Justice
by Lithnarong Pholsena (Lao People’s Democratic
Republic) .................................................................................... 237• The Administration of Criminal Justice in Malaysia:
The Role and Function of Prosecution
by Abdul Razak Bin Haji Mohamad Hassan (Malaysia) ....... 247• The Role and Function of Prosecution in Criminal Justiceby Zafar Ahmad Farooqi (Pakistan) ........................................ 257

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• The Role and Function of the Prosecution in the Philippine
Criminal Justice System
by Menrado Valle Corpuz (Philippines) ................................... 272• The Role and Function of Public Prosecutors in Thailand
by Somjai Kesornsiricharoen (Thailand) ................................. 280
Reports of the Course• The Relationship of the Prosecution with the Police andInvestigative Responsibility
by Group 1 ................................................................................. 307• The Role of Prosecution in the Screening of Criminal Cases
by Group 2 ................................................................................. 326• Issues Concerning Prosecution in Relation to Conviction, Speedy
Trial and Sentencing
by Group 3 ................................................................................. 348
II. THE NINTH MEETING OF THE AD HOC ADVISORY COMMITTEE OF
EXPERTS ON UNAFEI WORK PROGRAMMES AND DIRECTIONS
Report of Recent Activities and Future Perspectives of UNAFEI
by Toichi Fujiwara (UNAFEI) ......................................................... 371
Report of the Ninth Meeting of the Ad Hoc Advisory
Committee of Experts on UNAFEI Work Programmes andDirections ............................................................................................ 385
APPENDIX .......................................................................................... 397

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INTRODUCTORY NOTE
The Asia and Far East Institute for the Prevention of Crime and theTreatment of Offenders (UNAFEI) is proud to submit to the international
community the Annual Report for 1997 and Resource Material Series
No. 53.
In the first part of this publication, the Annual Report outlines theInstitute's main activities in 1997, as well the work programme for 1998.
Resource Material Series No. 53 comprises the second part of thispublication. It contains the work product of the 107th International
Training Course, “The Role and Function of Prosecution in Criminal
Justice”, which was conducted at UNAFEI from 1 September to 21
November 1997. Specifically, the papers contributed by the visiting
experts, selected country reports from among the Course participants,
and the reports of the Course are published.
Briefly, I would like digress and take this opportunity to pay tribute to
the contributions of the Government of Japan, particularly the Ministryof Justice and the Japan International Cooperation Agency, and the Asia
Crime Prevention Foundation. Without their indispensable andunwavering support, UNAFEI international training programmes would
not be so successful.
Resource Material Series No. 53 also features the Ninth Meeting of the
Ad Hoc Advisory Committee of Experts on UNAFEI Work Programmes
and Directions. This meeting was convened on 27 October 1997 with atwofold purpose: to review and assess the work accomplished by UNAFEI
in the past, and to consider proposals to improve and enhance future
programmes. Contained herein are my report to the Committee on the
recent activities and future perspectives of UNAFEI and the evaluation
report prepared by the Committee.
In my report to the Ad Hoc Advisory Committee, I explained that the
publications of the Institute are designed to meet the practical needs(including training) of criminal justice officials by providing comprehensive
information on urgent and contemporary criminal justice issues.
Primarily these efforts have been realized through the Resource Material
Series. Unfortunately, in recent years, the timeliness of UNAFEI's
publication of the Resource Material Series greatly diminished—fallingbehind by more than one year.

vii

However, it is truly my pleasure to report that the completion of
Resource Material Series No. 53 marks the end of a black chapter in
UNAFEI history. Owing to the truly herculean efforts by the editors of
the Resource Material Series, Mr. Yuzuru Takahashi (Chief of Training
Division) and Ms. Ana M. Vander Woude (Linguistic Adviser), an
unprecedented five editions of the Resource Material Series have been
published in a period of less than one year, bringing the institute up-todate. In consideration of the above, I must request the understanding of
the selected authors for not having sufficient time to refer the manuscripts
back to them before publication.
Moreover, to widen the scope of UNAFEI’s target audience and todisseminate even more rapidly our training programme results, theResource Material Series, as well as the UNAFEI Newsletter, will beavailable soon on our new homepage, which is scheduled to open in thevery near future.
Resource Material Series No. 53 is significant for another reason also.
Towards further increasing the international perspective of ourpublications, the number of participants’ papers published by UNAFEI
has been increased from the usual four or five to ten. Regrettably, not all
the papers submitted by the Course participants could be published, but
certainly, a larger representation is present now.
By continuing to improve its training, research and publication
activities, UNAFEI wishes to demonstrate its firm commitment topromoting the sound development of criminal justice administration in
the Asia-Pacific region, as well as the entire international community.
January 1998

Toichi Fujiwara
Director of UNAFEI

viii

MAIN ACTIVITIESPART ONEANNUAL REPORTFOR 1997• Main Activities of UNAFEI• UNAFEI Work Programme for 1998

UNAFEI1

ANNUAL REPORT FOR 19972

MAIN ACTIVITIESMAIN ACTIVITIES OF UNAFEI(1 January 1997 - 31 December 1997)
I. ROLE AND MANDATE
The Asia and Far East Institute for the Prevention of Crime and the Treatment of
Offenders (UNAFEI) was established in Tokyo, Japan in 1961 pursuant to an agreement
between the United Nations and the Government of Japan. Its goal is to contribute tosound social development in Asia and the Pacific region by promoting regional cooperationin the field of crime prevention and criminal justice through training and research.
UNAFEI has paid the utmost attention to the priority themes identified by theCommission on Crime Prevention and Criminal Justice at its first session. Moreover,
UNAFEI has been taking up urgent, contemporary problems in the administration of
criminal justice in the region, especially problems generated by rapid socio-economicchange (e.g., drug trafficking, drug abuse, organized crime, corruption, prison
overcrowding and juvenile delinquency) as the main themes and topics for its training
courses, seminars and research projects.
II. TRAINING
Training is the principal area and priority of the Institute’s work programmes. In
the international training courses and seminars, participants discuss and study pressing
problems of criminal justice administration from various perspectives. They deepen
their understanding, with the help of lectures and advice by the UNAFEI faculty, visiting
experts and ad hoc lecturers. This so-called “problem-solving through an integrated
approach” is one of the chief characteristics of UNAFEI programmes.
Each year, UNAFEI conducts two international training courses (duration: threemonths) and one international seminar (duration: one month). Approximately 60
government officials from various overseas countries receive fellowships from the Japan
International Cooperation Agency (JICA; a governmental agency for ODA programmes)
each year to participate in UNAFEI training programmes.
Training courses and seminars are attended by both overseas and Japaneseparticipants. Overseas participants come not only from the Asia-Pacific region but also
from the Middle and Near East, Latin America and Africa. These participants areexperienced practitioners and top-level administrators holding relatively senior positions
in criminal justice fields.
During its 36 years of existence, UNAFEI has conducted a total of 107 international
training courses and seminars, in which approximately 2,593 criminal justice personnel
have participated, representing 89 different countries. In their respective countries,
UNAFEI alumni have been playing leading roles and holding important posts in thefields of crime prevention and the treatment of offenders and in related organizations.

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ANNUAL REPORT FOR 1997
A. The 105th International Seminar
1. Introduction
From 27 January to 28 February 1997, 25 participants from 19 countries attended
the 105th International Seminar to examine the main theme of “The Effective
Administration of Criminal Justice for the Prevention of Corruption by Public Officials.”
2. Methodology
Firstly, the Seminar participants respectively introduced their countries’ experiences
regarding corruption. Secondly, General Discussion sessions in the conference hall
examined the subtopics of the main theme. In sum, the causes and dynamics of corruption
were analyzed in order to seek concrete countermeasures. In order to conduct eachsession effeciently, the participants were divided into the following six groups under
the guidance of faculty advisers:
Topic 1: Current Situation of Corruption by Public Officials,
Topic 2: The Importance of the Independence and Neutrality of Investigative Agencies,
Topic 3: Corruption by Public Officials: Current Problems in Administrating Criminal
Justice and Solutions in General at the Investigation Stage,
Topic 4: Current Problems in Administrating Criminal Justice and Their Solutions
in Regards to Corruption by Public Officials at the Trial Stage,
Topic 5: General Measures to Prevent Corruption, andTopic 6: Corruption in the Criminal Justice System and Preventive Measures.
Each group elected a chairperson and rapporteur to organize the discussions.
Subsequently in the conference hall, all the participants and the UNAFEI faculty
seriously studied the designated subtopics and exchanged views. Final reports werecomplied based on said discussion, which were ultimately adopted as the reports of the
Seminar. These reports will be printed in their entirety in UNAFEI Resource Material
Series No. 52.
3. Outcome Summary
Regrettably, whether in developed or developing countries, some form of corruption
exists at all levels of government—including the criminal justice system. Of course, theideal solution would be to seek measures towards the eradication of corruption. However,such a task would be practically unrealistic. Thus, it is incumbent on the criminal
justice system of each country to fight corruption effectively as the second best option.
The complexity and the different facets of corruption made discussions quite
challenging. Obstacles included such factors as the absence of a clear and universal
definition of corruption and the multitude of interrelated causal factors (e.g., different
political systems, criminal justice systems, cultural values and beliefs, economic
development, etc.).
First and foremost, a sustained drive against bribery and corruption requires a wholly
independent and neutral investigative agency and judiciary. This should be sought inaccordance with the situation of the country, whether resulting in the establishment of
new agencies and courts or improving existing ones.
As to countermeasures, greater transparency is suggested at the recruitment andpromotion stages in order to prevent such factors as nepotism, favoritism, political

4

MAIN ACTIVITIESinterference and bribery. A code of conduct and ethical standards should be adopted
also and stringently enforced. Other measures considered to be notable include effective
training programs, good working conditions guaranteed by a high salary and allowances,internal and external inspection, and the use of job rotation and job enrichment as
administrative tools. Also recommended is a system similar to the ombudsman office ofsome countries.
Additionally, the adoption of a system requiring the periodic submission andpublication of an official’s statement of assets and liabilities is seen as a strong
anticipatory measure to hinder the commission of corruption. Finally, it is reiterated
that a penalty system that is commensurate with the tremendous power andresponsibility placed upon the hands and shoulders of public officials should be put inplace as a deterrent to the commission of corruption.
However, even the implementation of all of the above measures would not suffice tocontrol corruption without the involvement of the public. To this end, public education
campaigns regarding corruption and the debilitating effects of corruption on their daily
lives would go a long way to sustaining the drive against this menace. Equally importantis establishing measures which encourage the public to play a proactive role in identifying
areas of corruption yet protect their privacy interests such as “Whistle Blowing” and“P.O. Box” systems.
B. The 106th International Training Course
1. Introduction
UNAFEI conducted the 106th International Training Course (from 14 April to 4 July1997) with the main theme, “The Quest for Effective Juvenile Justice Administration.”
This Course consisted of 29 participants from 19 countries.
The Institute’s selection of this theme reflects its concerns that juvenile delinquency
is becoming increasingly serious and rampant in the world, and that juveniles committing
heinous offences are becoming younger and younger and coming from all walks of life.
Criminal justice practitioners should seriously cope with such situations by improving
the juvenile justice administration.
2. Methodology
The participants identified the causes and nature of juvenile delinquency and searched
for effective countermeasures and prevention activities. Also considered were the proper
dispositions and treatment programs for juvenile delinquents, making reference to therole, use and application of the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (The Beijing Rules).
The objectives were primarily realized through the Individual Presentations and theGroup Workshop sessions. In the former, each participant presented the actual situation,
problems and future prospects of his respective country with respect to the main themeof the Course. The Group Workshops further examined the subtopics of the main theme.
To facilitate discussions, the participants were divided into the following three groups
under the guidance of faculty advisers:
Group 1: Current Situation and Preventive Measures,Group 2: Dispositions Rendered by Criminal Justice Agencies, andGroup 3: Institutional Treatment and Community-Based Programmes.
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ANNUAL REPORT FOR 1997
Each group elected a chairperson(s) and rapporteur(s) to organize the discussions.
The group members seriously studied the designated subtopics and exchanged theirviews based on information obtained through personal experience, the Individual
Presentations, lectures and so forth. Nineteen sessions were allocated for Groupdiscussion.
In the eighth week, Plenary Meetings were held to discuss the interim outline of theGroup Workshop reports and to offer suggestions and comments. During the final
Plenary Meetings in the tenth week, drafts of the Group Workshop reports were examined
and critiqued by all the participants and the UNAFEI faculty. Based on these discussions,
the Groups further refined their reports and presented them in the Report-Back Session,
where they were endorsed as the reports of the Course. The full texts of the reports will
be published in UNAFEI Resource Material Series No. 52.
3. Outcome Summary
The lack of a universally recognized definition for “juvenile” places limitations on
responses to the problem of juvenile delinquency worldwide. Moreover, the lack of astandard reference age makes comparative international evaluations difficult.
Juvenile delinquency cannot be entirely considered a criminal justice-related problem.
In effect there is ample evidence to suggest that delinquency is just one aspect of larger
antisocial behavior. Traditionally problems of juveniles were managed by the family
and extended family structures. However, increasingly the state has had to adopt arole in loco parentis. Consequently, special training on juvenile delinquency should be
imparted to criminal justice officers in order to create better understanding andcoordination amongst them to cope uniformly with such problems.
The need to establish a juvenile court system in the respective countries withprofessionally qualified personnel, as well as broad jurisdiction and decision-making
power, was emphasized by the participants as a major step in the improvement of thejuvenile justice system. Also underscored was the need for police or public prosecutors
to perform the prosecution role in juvenile courts to alleviate the difficulty of fact-finding,especially in a plea of not guilty.
Diversion has the major advantage of minimizing the stigmatization of the juvenile
offender. Moreover, aware of the fact that research suggests that the majority ofdelinquent children rarely re-offend, the participants were convinced that it should be
encouraged to minimize the adverse effects of the juvenile justice system.
The police cautioning programs in Australia and the suspension of prosecution ofjuvenile offenders on the condition of parental guidance in the Republic of Korea provide
good examples of diversion by the police and public prosecutors. Additionally, the disposalof juvenile offenders by agencies outside the criminal justice system like the family
conference system of New Zealand and the mediation system in Germany were seen as
good diversion measures.
In regards to criminal punishment, deprivation of liberty should be of the last resort,
limited to those cases in which a juvenile has been adjudicated of a serious act involving
violence against another person or persists in committing other serious offences andthere is not any other appropriate response.

6MAIN ACTIVITIES
If a juvenile is institutionalized, the loss of liberty must be restricted to the minimum
possible degree with special institutional arrangements for confinement and differences
in kinds of offenders, offences and institutions. Additionally, more attention andimportance should be given to the treatment of the juvenile delinquent than to his
punishment. The objective of an institution should be to provide the juvenile with care,
protection, education and vocational skills with a view to assisting him to become agood and law-abiding citizen.
C. The 107th Inernational Training Course
1. Introduction
From 1 September to 21 November 1997, UNAFEI conducted the 107th International
Training Course with the main theme, “The Role and Function of Prosecution in the
Criminal Justice.” This Course consisted of 29 participants from 19 countries.
2. Methodology
Although the degree of prosecutors’ authority and responsibility varies from country
to country, it is commonly recognized that they play a crucial role in the effective andefficient administration of criminal justice. A large number of countries suffer from a
low conviction rate, shortage of staff, delayed proceedings in investigation and trial,and overcrowding. Based on such actual and specific problems faced by each country,
the 107th Course participants explored solutions to further improve prosecution systems
and practices from the prosecutors’ point of view, which would thereby contribute to thedevelopment of the whole criminal justice system. Particularly, during this Training
Course, the role and function of prosecutors at the stages of investigation, initiation ofprosecution and trial were extensively deliberated.
The objectives were primarily realized through the Individual Presentations and theGroup Workshop sessions. In the former, each participant presented the actual situation,
problems and future prospects of his respective country with respect to the main themeof the Course. The Group Workshops further examined the subtopics of the main theme.
To facilitate discussions, the participants were divided into the following three groups
under the guidance of faculty advisers:
Group 1: The Relationship of the Prosecution with the Police and Investigative
Responsibility,
Group 2: The Role of Prosecution in the Screening of Criminal Cases, andGroup 3: Issues Concerning Prosecution in Relation to Conviction, Speedy Trial and
Sentencing.
Each group elected a chairperson(s) and rapporteur(s) to organize the discussions.
The group members seriously studied the designated subtopics and exchanged theirviews based on information obtained through personal experience, the Individual
Presentations, lectures and so forth. Nineteen sessions were allocated for Groupdiscussion.
In the eighth week, Plenary Meetings were held to discuss the interim outline of theGroup Workshop reports and to offer suggestions and comments. During the final
Plenary Meetings in the tenth week, drafts of the Group Workshop reports were examined
and critiqued by all the participants and the UNAFEI faculty. Based on these discussions,7

ANNUAL REPORT FOR 1997
the Groups further refined their reports and presented them in the Report-Back Session,
where they were endorsed as the reports of the Course. The reports will be published infull in UNAFEI Resource Material Series No. 53.
3. Outcome Summary
Unquestionably, there is a need for sustained cooperation between prosecutors,
investigating agencies, defense counsel, judges, support staff and all persons involvedin the administration of criminal justice. In particular, investigation and prosecution
are fundamentally linked. In countries where prosecutors have an authorized role inpolice investigation or where they have the authority to investigate, the results ofinvestigation are good and the conviction rate is higher than in countries whereprosecutors are afforded neither role. For example, in Singapore, Sri Lanka andThailand, prosecutors can only depend on the police’s files in coming to a decision ofwhether to prosecute or not. However, coupled with the lack of coordination between
the police and prosecution, such practice often results in insufficient evidence due topoor investigation and consequently inadequate trial preparation.
Additionally, prosecution in many countries plays a very vital role in case screening.
In essence, prosecution acts as a quasi-judicial entity, operating at an intermediate
position between the Executive and the Judiciary. The participants identified several
presecution-related problems that affect screening such as a lack of investigative skills
and expertise due to the absence of powers of investigations.
The participants recommended enhancing the discretion of the prosecution towithdraw prosecution. In some deserving cases, the withdrawal of prosecution would
give offenders a chance to reform and reintegrate into society. It would also prevent
overloading the court with unnecessary and trivial cases, as well as the overcrowding ofprisons. However, the practice of withdrawal of prosecution should be safeguarded so
as to ensure transparency and accountability in the decision-making process.
The importance of the role played by the prosecutor in a criminal trial cannot be
overemphasized. Prosecutors also have a professional duty as representatives of the
public interest to ensure that the appropriate sentence is meted out by the court. It is
for this reason that prosecutors in most jurisdictions are required to assist the courts bydisclosing as much information as possible relating to sentencing. Nonetheless, theparticipants discussed some problems which adversely affect appropriate sentencing,such as (1) the court’s failure to consider the opinion of the prosecutor; (2) the prosecutor
always requesting the maximum punishment; and (3) the police and the prosecutor
lacking information about the defendant’s past criminal record.
Finally, adequate initial and continued professional training are necessary for theefficient and diligent performance of prosecutorial functions. Furthermore, probity should
be a requisite for admission into the profession. Prosecutors should adhere to theestablished professional ethics throughout their career. The participants also recognized
the importance of the institution of police prosecutors in some jurisdictions. However it
was stressed that police prosecutors should receive sufficient legal training, since many
are not law graduates.

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MAIN ACTIVITIES
III. THIRD SPECIAL SEMINAR FOR SENIOR CRIMINAL JUSTICEOFFICIALS OF THE PEOPLE’S REPUBLIC OF CHINAThe Third Special Seminar for Senior Criminal Justice Officials of the People’s
Republic of China was conducted from 1 to 19 December 1997 with the main theme of“The Quest for Effective Juvenile Justice Administration”. Ten senior criminal justiceofficials and the UNAFEI faculty comparatively discussed the problems faced by Japanand China in the realization of criminal justice, with particular attention to juvenile
justice issues.
IV. TECHNICAL COOPERATION
A. Joint Seminars
Since 1981, UNAFEI has conduced 17 joint seminars under the auspices of JICA andin collaboration with host governments in Asia including China, the Republic of Korea,
Malaysia, Nepal, Pakistan and the Philippines. With the participation of policy-makers
and high-ranking administrators, including members of academia, the joint seminars
attempt to provide a discussion forum in which participants can share their views andjointly seek solutions to various problems currently facing criminal justice administrationin both the host country and Japan.
In March 1997, UNAFEI was to have held the Bangladesh-UNAFEI Joint Seminarin the Bangladeshi capital city of Dhaka. Unfortunately, unexpected budgets cuts by
JICA at the end of the fiscal year prevented the realization of the Joint Seminar. The
Bangladesh-UNAFEI Joint Seminar has been rescheduled for March 1998.
B. Regional Training Programmes
1. Thailand
In January 1997, UNAFEI dispatched two experts to Thailand to assist the Office of
the Narcotic Control Board (ONCB) in organizing the Fifth Regional Training Course
on Effective Countermeasures against Drug Offences and the Advancement of Criminal
Justice Administration. The training course was held with the cooperation of JICA andthe Royal Thai Government. Participants from various Asian-Pacific countries attended
this two-week seminar and discussed such issues as the implementation of the Vienna
Convention in their respective countries and international cooperation based upon theConvention, as well as the improvement of investigative techniques.
2. Costa Rica
From 28 July to 8 August 1997, UNAFEI assisted the Latin American Institute for
the Prevention and the Treatment of Offenders (ILANUD) in organizing the Tenth
Regional Seminar, “Effective Measures for Combatting Drug-related Crimes andImproving the Administration of Criminal Justice” in San Josè, Costa Rica. The seminar
was held with the cooperation of JICA and the Government of Costa Rica. About 20
representatives from Latin America and the Caribbean, mostly high-ranking judges,
public prosecutors and administrators were invited to ILANUD. With the help of several
experts on drug offences, including the Deputy Director and a professor of UNAFEI, therepresentatives exchanged views on tackling drug-related offences, including money
laundering.

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ANNUAL REPORT FOR 1997
V. COMPARATIVE RESEARCH PROJECT
Reflecting its emphasis on the systematic relevance of training activities and priority
themes identified by the Commission at its first session, the research activities of theInstitute are designed to meet practical needs, including those for training materials
for criminal justice personnel. For example, UNAFEI is updating its research byrequesting several experts from countries in the Asia-Pacific region to report on theirrespective probation systems. UNAFEI will subsequently compile and publish thesereports for international distribution in a book tenatively titled “Criminal Justice Profilesof Asia: Probation”.
VI. INFORMATION AND DOCUMENTATION SERVICES
The Institute continues to collect data and other resource materials on crime trends,
crime prevention strategies, and the treatment of offenders from Asia, the Pacific, Africa,
Europe and the Americas, and makes use of this information in its training courses andseminars. The Information and Library Service of the Institute has been providing,upon request, materials and information to United Nations agencies, governmentalorganizations, research institutes and researchers, both domestic and foreign.
VII. PUBLICATIONS
Reports on training courses and seminars are published regularly by the Institute.
Since 1971, the Institute has issued the Resource Material Series, which contains
contributions by the faculty members, visiting experts and participants of UNAFEI. In
1997, the 49th and 50th editions of the Resource Material Series were published.
Additionally, issues 92 to 94 of the UNAFEI Newsletter include a brief report on eachcourse and seminar (from the 105th to the 107th respectively) and provide other timely
information.
VIII. THE NINTH MEETING OF THE AD HOC ADVISORY COMMITTEE OF
EXPERTS ON UNAFEI WORK PROGRAMMES AND DIRECTIONSThe Ninth Meeting of the Ad Hoc Advisory Committee of Experts on UNAFEI Work
Programmes and Directions convened on 27 October 1997. The experts comprised
distinguished criminal justice officials from the United Nations, overseas and Japan.
The purpose of the meeting was twofold: to review and assess the work accomplishedby UNAFEI in the past, and to consider proposals to improve and enhance future
programmes.
The Report of the Ninth Meeting of the Ad Hoc Advisory Committee of Experts on
UNAFEI Work Programmes and Directions will be published in its entirety in Resource
Material Series No. 53.

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MAIN ACTIVITIESIX. OTHER ACTIVITIES
A. Public Lecture Programme
On 12 February 1997, the Public Lecture Programme was conducted in the Grand
Conference Hall of the Ministry of Justice. In attendance were many distinguishedguests, UNAFEI alumni and the 105th International Seminar participants. This
Programme was jointly sponsored by the Asia Crime Prevention Foundation (ACPF),
the Japan Criminal Policy Society (JCPS) and UNAFEI.
Public Lecture Programmes purport to increase the public’s awareness of criminal
justice issues through comparative international study by inviting distinguished speakers
from abroad. This year, the Programme sponsors invited Dr. Prasit Damrongchai(Secretary General, Office of the Commission of Counter Corruption, Kingdom ofThailand) and Dr. David L. Carter (Professor, School of Criminal Justice, Michigan
State University, United States of America). Their lectures were entitled “Money
Laundering Law and Corruption Investigation” and “The Identification and Preventionof Police Corruption”, respectively.
B. Assisting UNAFEI Alumni Activities
Various UNAFEI alumni associations in various countries have commenced or areabout to commence research activities in their respective criminal justice fields. It is,therefore, one of the important tasks of UNAFEI to support these contributions toimprove the crime situation.
C. Overseas Missions
Mr. Toichi Fujiwara (Director) and Ms. Kayo Konagai (Professor) visited Hong Kong
to attend the Pacific Rim Regional Conference, “Re-integration of Discharged Prisoners:
Rehabilitation, Employment and Prevention of Recidivism”. In a keynote address,
Director Fujiwara discussed the general activities of UNAFEI. Professor Konagai
delivered a lecture entitled “The Japanese Approaches to Facilitate the Re-integrationof Discharged Prisoners into the Community” in Plenary Session 1. Additionally, they
visited various Hong Kong criminal justice agencies during their stay.
Mr. Terutoshi Yamashita (Professor) and Mr. Ryosuke Kurosawa (Professor) attended
the Fifth Regional Training Course on Effective Countermeasures against Drug Offenses
and Advancement of Criminal Justice Administration in Bangkok, Thailand. Mr.
Yamashita contributed to the course from 19 to 26 January 1997, and Mr. Kurosawa
assisted from 16 January to 1 February 1997. They delivered lectures respectively
entitled “Confiscation of Illicit Proceeds and Anti-Money Laundering Law of Japan”
and “Treatment of Drug Abused Offenders in Asia and the Pacific”. Additionally, they
visited various Thai criminal justice agencies during their stay.
Mr. Mikinao Kitada (Deputy Director) attended an organizational meeting at theUnited Nations Crime Prevention and Criminal Justice Branch in Vienna, Austria from
8 to 16 February 1997. The meeting concerned a United Nations project entitled“Information-Gathering and Analysis of Firearms Regulation.” This project focuses on
the regional and international exchange of data and information on firearms regulation.
It will also assist the United Nations Secretariat in pursuing the possible establishmentof a database and biennial publication of relevant reports. The Deputy Director attended
in his capacity as Project Expert for the Asia-Pacific region.

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ANNUAL REPORT FOR 1997
Mr. Yuzuru Takahashi (Professor) and Mr. Chiaki Iizuka (Administrative Staff) visited
three Southeast Asian countries in preparation for the 107th International Training
Course. Specifically, Mr. Takahashi traveled to Indonesia, Singapore and Malaysia from
8 to 22 March to study the unique prosecution systems of these respective nations.
Ms. Tomoko Akane (Professor) attended the Fortieth Session of the Commission on
Narcotic Drugs of the United Nations Economic and Social Council in Vienna, Austria
from 17 to 29 March 1997. Ms. Akane attended various plenary meetings and focused
primarily upon issues relating to the implementation of international drug control
treaties and money laundering.
Mr. Toichi Fujiwara (Director) attended the Sixth Session of the United Nations
Commission on Crime Prevention and Criminal Justice in Vienna, Austria from 28
April to 12 May 1997. During a plenary meeting, the Director delivered a statement
regarding the recent activities of UNAFEI.
Mr. Toichi Fujiwara (Director) and Mr. Hiroyuki Yoshida (Professor) visited thePhilippines from 30 May to 2 June 1997 to attend the inauguration and turn-overceremonies for the first halfway house established in that nation. This event, known as
the Muntinlupa Project, involved the joint efforts of various organizations including thePhilippine Department of Justice and ACPF.
Mr. Terutoshi Yamashita (Professor) in his capacity as UNAFEI-ACPF Liaison Officer
attended the ACPF Working Group Meeting on Extradition and Mutual Assistance in
Criminal Matters held in Kuala Lumpur, Malaysia from 27 to 31 May 1997.
Mr. Toichi Fujiwara (Director) and Mr. Ryosuke Kurosawa (Professor) visited four
Southeast Asian countries from 13 to 28 July 1997. Specifically, they traveled toIndonesia, Singapore, Malaysia and Thailand to study the unique criminal justicesystems of these respective nations. During their visits, UNAFEI Alumni Association
receptions were held in each of the countries.
Mr. Masahiro Tauchi (Deputy Director) and Ms. Tomoko Akane (Professor), attended
the Tenth Regional Seminar, “Effective Measures for Combatting Drug-related Crimes
and Improving the Administration of Criminal Justice” in San José, Costa Rica from 28
July to 8 August 1997. They presented papers respectively entitled “The Confiscationof Drug Trafficking Proceeds” and “Effective Countermeasures against Drug Trafficking:Anti-Money Laundering Policies, Legislation and Practices by Law Enforcement”. The
seminar was organized by the United Nations Latin American Institute for thePrevention of Crime and the Treatment of Offenders (ILANUD), under the sponsorshipof the Government of Costa Rica, JICA, UNAFEI and the Supreme Court of Costa Rica.
Mr. Toichi Fujiwara (Director) and Mr. Masahiro Tauchi (Deputy Director) served as
members of the Japanese Evaluation Team of the ten ILANUD Regional Seminars,
which have been conducted in Costa Rica since 1989. Towards this purpose, a series ofmeetings were held in San José, Costa Rica from 7 to 15 August 1997 in collaboration
with representatives of ILANUD and the Costa Rican Ministry of Foreign Affairs. The
team, headed by Mr. Fujiwara, also comprised JICA officials, specifically, Mr. Osamu
Makino and Mr. Masahiro Nakai.

12

MAIN ACTIVITIES
Mr. Terutoshi Yamashita (Professor) attended the Second Annual Conference andGeneral Meeting of the International Association of Prosecutors (IAP) held in Ottawa,
Ontario, Canada from 2 to 6 September 1997. During the Workshop “A View from
Asia”, Mr. Yamashita made a short presentation concerning the role of UNAFEI ininternational cooperation.
Mr. Masahiro Tauchi (Deputy Director) attended the Twelfth Co-ordination Meetingof the Network of U.N. Institutes in Courmayeur Mont Blanc, Italy from 2 to 3 October
1997.
Mr. Masahiro Tauchi (Deputy Director) attended the International Scientific andProfessional Advisory Council of the United Nations Crime Prevention and Criminal
Justice Programme (ISPAC) International Conference, “Violent Crime and Conflict:
Towards Early Warning and Prevention Mechanisms” in Courmayeur Mont Blanc, Italy
from 4 to 6 October 1997.
Mr. Hiroyuki Yoshida (Professor) and Ms. Kayo Konagai (Professor) traveled to Nairobi,
Kenya from 5 to 18 October to lecture at the JICA Seminar for the Prevention of Juvenile
Delinquency and the Treatment of Young Offenders. Additionally, during their stay,they visited various Kenyan criminal justice agencies where they delivered additional
lectures on juvenile delinquency and prevention.
D. Assisting ACPF Activities
UNAFEI cooperates and corroborates with ACPF to further improve crime prevention
and criminal justice administration in the region. Since UNAFEI and ACPF have many
similar goals and a large part of ACPF’s membership consists of UNAFEI alumni, therelationship between the two is strong. Some examples of cooperation and corroboration
can be seen as follows:
1. UNAFEI has assisted ACPF extensively in all its World Conferences, as both anorganizer and a contributor, including the Sixth ACPF World Conference which
was held in Tokyo from 28 to 31 October 1997. Additionally, the participants of
the 107th International Training Course attended the Symposium held on October
29, which focused on the theme of prosecution.
2. An ACPF Working Group meeting was held at UNAFEI in October 1996, and the104th Course participants joined the meeting to discuss international cooperation.
Also, a UNAFEI faculty member attended another ACPF Working Group meeting
held in Malaysia in May 1997 regarding international cooperation, drug-related
crimes and environmental protection.
3. UNAFEI dispatched faculty members to Manila to corroborate with ACPF andAsia Crime Prevention Philippines, Incorporated (ACPPI) in establishing the firsthalfway house in the Philippines. (Established in June 1997.)
4. To proceed with an ACPF project to foster volunteer leaders in the crime prevention
field, UNAFEI sent two professors to Thailand in December 1995 and one professor
to Papua New Guinea in December 1996.

13

ANNUAL REPORT FOR 1997
IX. HUMAN RESOURCES
A. Staff
In 1970, the Government of Japan assumed full financial and administrative
responsibility for running the Institute. The Director, Deputy Director and sevenprofessors are selected from among public prosecutors offices, the judiciary, corrections
and probation. UNAFEI also has approximately 20 administrative members, who areappointed from among officials of the Government of Japan, and a linguistic adviser.
Moreover, visiting experts from abroad are invited by the Ministry of Justice to eachtraining course or seminar. The Institute has also received valuable assistance fromvarious experts, volunteers and related agencies in conducting its training programmes.
B. Faculty Changes
Mr. Mikinao Kitada, formerly Deputy Director of UNAFEI, was transferred to theInternational Affairs Division of the Criminal Affairs Bureau of the Ministry of Justice
and appointed Director on 1 April 1997.
Mr. Masahiro Tauchi, formerly Cabinet Councillor of the Cabinet Councillors’ Officeon Internal Affairs, was appointed Deputy Director of UNAFEI on 1 April 1997.
Mr. Tatsuhiko Araki, formerly Professor of UNAFEI, was transferred to the
Rehabilitation Bureau of the Ministry of Justice and appointed Specialist on 1 April
1997.
Mr. Shoji Imafuku, formerly a Probation Officer of the Tokyo Probation Office, joined
UNAFEI as a Professor on 1 April 1997.
X. FINANCESThe Institute’s budget is primarily provided by the Ministry of Justice. The total
amount of the UNAFEI budget is approximately ¥350 million per year. Additionally,
JICA provides assistance for the Institute’s international training courses and seminars.
Through its financial contributions, ACPF is another constant and reliable supporter of
UNAFEI activities.

14

UNAFEI WORK PROGRAMME FOR 1998

UNAFEI WORK PROGRAMMME FOR 1998
I. TRAINING
A. The 108th International Seminar
UNAFEI will hold the 108th International Seminar from 26 January to 27 February
1998. The Seminar will focus on the main theme, “Current Problems in the Combat ofOrganized Transnational Crime,” recognizing that the Tenth United Nations Congresson the Prevention of Crime and the Treatment of Offenders will take up the issue as animportant theme. In light of the growing threat by organized transnational crime atboth national and international levels, the Seminar will examine the current situationof organized crime and legislation against such crime as well as the problems faced bycriminal justice agencies in the participating countries.
B. The 109th International Training Course
The 109th International Training Course will be held from 13 April to 3 July 1998
with the main theme of “Effective Treatment Measures for Prisoners to Facilitate Their
Re-integration into Society”. The smooth re-integration of discharged offenders into
society relies upon the establishment, proper implementation, and strengthening oftreatment programs within and without the prison walls. Thus, correctional treatmentin prisons, release systems, and treatment in the community must be designed tosupplement and complement each other in order to secure the re-integration of prisoners
into the community, as well as to benefit the community which will receive them after
release. Thus, in this Training Course, these issues will be discussed from the perspectiveof the participating countries in terms of the actual situation, problems andcountermeasures.
C. The 110th Internationl Training Course
The 110th International Training Course, “Effective Countermeasures against
Economic Crime and Computer Crime”, is scheduled to be held from 31 August to 20
November 1998. Participants are expected to analyze the present situation of economic
crime and computer crime; explore overall strategies by criminal justice agencies
worldwide to the problems by said crimes; and deepen their understanding of the relevant
United Nations instruments.
II. TECHNICAL COOPERATION
A. Bangladesh-UNAFEI Joint Seminar
From 14 to 18 March 1998, the Bangladesh-UNAFEI Joint Seminar on Contemporary
Problems in the Criminal Justice System and Administration will be held in the
Bangladeshi capital city of Dhaka. The Government of the People’s Republic ofBangladesh through the Ministry of Home Affairs and UNAFEI will organize the Joint
Seminar.

15

ANNUAL REPORT FOR 1997
B. India-UNAFEI Joint Seminar
In December 1998, the India-UNAFEI Joint Seminar will be held in Delhi. The
Government of the Republic of India through the National Institute of Criminology andForensic Science of the Ministry of Home Affairs and UNAFEI will organize the Joint
Seminar.
C. Regional Training Programmes
1. Kenya
From July to October 1998, one UNAFEI professor will be dispatched to Kenya toassist the Children’s Department of the Ministry of Home Affairs and National Heritage
in a project to develop nationwide standards for the treatment of juvenile offenders.
2. Sixth Regional Training Course on Effective Countermeasures against
Drug Offences and the Advancement of Criminal Justice
Administration
In March 1998, one UNAFEI professor will travel to Thailand to assist the Royal
Thai Government and the Office of the Narcotics Control Board (ONCB) in organizing
the Sixth Regional Training Course on Effective Countermeasures against Drug Offences
and the Advancement of Criminal Justice Administration. Approximately 20 participantsfrom various Asia-Pacific countries will attend the two-week course and will discuss
drug-related issues identifying the actual problems in the participating countries.
Discussion topics in the Course will included the improvement of investigativetechniques, effective measures against money laundering, the implementation of theVienna Convention, international cooperation, and the treatment of drug offenders.
III. OTHER ACTIVITIES INTERREGIONAL GOVERNMENTAL EXPERTMEETING ON “INVESTIGATION AND PROSECUTION OF COMPUTERNETWORK CRIME”
UNAFEI will organize and host the interregional governmental expert meeting on“Investigation and Prosecution of Computer Network Crime” in October 1998 during
the 110th International Training Course. This expert meeting will be convened in
preparation for the Workshop on “Crimes Related to the Computer Network” of theTenth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders. UNAFEI willingly assumed this responsibility in response to a request madeduring the Twelfth Co-ordination Meeting of the United Nations Crime Prevention andCriminal Justice Programme Network held in Courmayeur, Italy in 1997.

16

APPENDIX
APPENDIX
MAIN STAFF OF UNAFEI
Director

Mr. Toichi Fujiwara

Deputy Director

Mr. Masahiro Tauchi

Faculty:
Chief of Training Division
and Professor

Mr. Yuzuru Takahashi

Chief of Research Division
and Professor

Mr. Hiroyuki Yoshida

Chief of Information andLibrary Service Division
and Professor

Ms. Kayo Konagai

Professor

Ms. Tomoko Akane

Professor

Mr. Terutoshi Yamashita

Professor

Mr. Ryosuke Kurosawa

Professor

Mr. Shoji Imafuku

Linguistic Adviser

Ms. Ana M. Vander Woude

Secretariat:
Chief of Secretariat

Mr. Fusao Takayama

Deputy Chief of Secretariat

Mr. Kenji Matsuda

Chief of General and Financial
Affairs Section

Mr. Azuma Okada

Chief of Training and Hostel
Management Affairs Section

Mr. Chiaki Iizuka

Chief of International Research
Affairs Section

Mr. Wataru Okeya«AS OF 31 DECEMBER 1997»17

ANNUAL REPORT FOR 1997

1997 VISITING EXPERTS
THE 105TH INTERNATIONAL SEMINAR
Mr. Wong Sai-chiu, Ryan

Assistant Director of Operations, Operations
Department, Independent Commission Against
Corruption, Hong Kong

Mr. Jung-Soo Lee

Director, Investigation Planning Office, Central
Investigation Department, Supreme Public
Prosecutors Office, Republic of Korea

Dr. Prasit Damrongchai

Secretary General, Office of the Commission ofCounter Corruption, Thailand

Dr. David L. Carter

Professor, School of Criminal Justice, Michigan State
University, United States

THE 106TH INTERNATIONAL TRAINING COURSE
Prof. Ian O’Connor

Head of Social Work and Social Policy, University of
Queensland, Australia

Dr. Edward Van Roy

Director, Social Develop Division, Economic and Social
Commission for Asia and the Pacific (ESCAP)

Prof. Dr. Frieder Dünkel

Professor, Ernst-Moritz-Arndt-Universität Greifswald,
Rechts-und Staatswissenschaftliche Fakultät,
Lehrstuhl für Kriminologie, Germany

Dr. B. N. Chattoraj

Professor and Head Faculty of Criminology National
Institute of Criminology and Forensic Science,
Ministry of Home Affairs, India

Mr. John Harding

Chief Probation Officer, Inner London Probation
Service, United Kingdom

Mr. Ralph Krech

Crime Prevention and Criminal Justice Officer, Crime
Prevention and Criminal Justice Division, United
Nations Office at Vienna

Ms. Judy Briscoe

Chief of Staff and Director of Delinquency Prevention,
Texas Youth Commission, United States

18

APPENDIX
THE 107TH INTERNATIONAL TRAINING COURSE
Mr. Henri de Larosièrede Champfeu

Judicial Research Official/Judge, Cour deCassation, France

Mr. Antonius Sujata

Head of Planning Bureau, Attorney General’s Office,Indonesia

Mr. Lee, Jung-Soo

Deputy Chief Prosecutor, Suwon District Prosecutor’s
Office, Republic of Korea

Mr. Francis Tseng

Deputy Head, Crime Division, Deputy Public
Prosecutor, Senior State Counsel, Attorney-General’sChambers, Singapore

Mr. D. P. Kumarasingha

President’s Counsel, Additional Solicitor General,
Attorney General’s Department,
Sri Lanka

Prof. Dr. Kanit Nanakorn

Former Attorney General, Thailand

Ms. Nora M. Manella

United States Attorney, Central District of California,
United States

19

ANNUAL REPORT FOR 1997

1997 AD HOC LECTURERS
THE 105TH INTERNATIONAL SEMINAR
Mr. Katsuhiko Kumazaki

Director, Special Investigation Department, Tokyo
District Public Prosecutors Office, Japan

Mr. Toru Akuzawa

Assistant Director, Service Regulations Division,
Bureau of Employee Relations, National Personnel
Authority, JapanTHE 106TH INTERNATIONAL TRAINING COURSE
Prof. Shin’ichiro Inose

Professor, Toyo University, Tokyo, Japan

Prof. Dr. Tetsuya Fujimoto

Professor, Department of Law, Chuo University, Tokyo,
Japan

Mr. Akio Harada

Director General, Criminal Affairs Bureau, Ministry ofJustice, Japan

Mr. Takashi Takee

Clinical Psychologist, Tachikawa Juvenile CounselingCenter, Tokyo Metropolitan Police Department, Tokyo,
Japan

Mr. Kuninao Minakawa
M.D., Ph.D.

Child Psychiatrist, Tokyo Institute of Psychiatry,Tokyo, JapanMr. Shigeo Kifuji

Director General, Rehabilitation Bureau, Ministry ofJustice, JapanMr. Shin’ichiro Tojo

Director General, Correction Bureau, Ministry ofJustice, Japan

Mr. Takeshi Hirono

Assistant Principal Family Court Probation Officer,
Tokyo Family Court, Tokyo, Japan

Prof. Dr. Jorg Martin Jehle

Direktor, Kriminologischen Zentralstelle Adolfsallee,
Wiesbaden, Germany

Mr. Mitsuru Toida

Chief, Econometric Analysis and Forecasting Division,
Statistical Research Department, Institute ofDeveloping Economies, Tokyo, JapanTHE 107TH INTERNATIONAL TRAINING COURSE
Mr. Minoru Shikita

Chairman, Asia Crime Prevention Foundation (ACPF)

Mr. Katsuhiko Kumazaki

Director, Special Investigation Department, Tokyo
District Public Prosecutors Office, Japan

20

APPENDIX

1997 UNAFEI PARTICIPANTS
THE 105TH INTERNATIONAL SEMINAR
Overseas Participants
Ms. Benabdallah Nadia

Magistrate, Tlemcen High Appeal Court, Algeria

Mr. Muhammad Majibur Rahman
Mia

Deputy Secretary, Ministry of Home
Affairs, Bangladesh

Mr. Zalo Leon Desiré

Dean of Instruction Judges, Court Deputy
Chairman, Tribunal de Premiere Instanced’ Abidjan, Côte d’Ivoire

Mr. Gamal El-din Abd Elaziz
Mohamed Elgohary

Director Anti-Bribery & Influence
Exploitation, General Administration for Public
Funds Investigation, Ministry of Interior, Egypt

Mr. Emosi Vunisa

Deputy Director, CID Headquarters, Fiji

Mr. Chan, Hilton Kwok Hung

Chief Inspector, Criminal Intelligence Bureau,
Royal Hong Kong Police Force, Hong Kong

Mr. Atul Karwal

District Superintendent of Police, Office of D.S.P.
Porbandar, India

Mr. Antonius Sujata

Head of Planning Bureau, Attorney General
Office of Indonesia, Indonesia

Mr. Mohammad Abdallah Saleh
Al-Qdah

Assistant Director, The Metropolitan
Police Directorate, The Public Security
Directorate—Amman, Jordan

Ms. Margaret Warigia Wachira

Senior Resident Magistrate, Senior Principal
Magistrate Court, Kiambu, Kenya

Mr. Law Hong Soon

Superintendent of Police, Deputy Officer in
Charge of Criminal Investigation, Criminal
Investigation Department, Ibu Pejabat Polis,
Malaysia

Mr. Howard Maliso

Senior Investigator, Ombudsman Commission,
Papua New Guinea

Mr. Apolinario D. Bruselas

Prosecutor IV, Department of Justice,
Philippines

Mr. Cha, Keun-pyung

2nd Deputy Chief, Seoul Police Agency, National
Security Division 1, Republic of Korea

Mr. Buwaneka Pandukabaya
Aluwihare

Senior State Counsel, Attorney General’s
Department, Sri Lanka

Mr. Pison Piroon

Senior Judge, Thonburi Criminal Court,
Thailand21

ANNUAL REPORT FOR 1997
Mr. Hoang Van Lai

Senior Police Inspector, General Department ofVietnamese Police, Viet Nam

Mr. Francis Xavier Musonda

Police Public Relations Officer, Zambian Police
Service, Zambia

Japanese Participants
Mr. Noriaki Kojima

Assistant Director, Firearms Control Division,Community Safety Bureau, National Police
Agency, JapanMr. Hiromi Nagai

Public Prosecutor, Tokyo High Public
Prosecutors Office, Japan

Mr. Tetsuya Ozaki

Deputy Warden, Ichihara Prison, Japan

Mr. Masahiko Sayama

Professor, Research and Training Institute,
Ministry of Justice, JapanMr. Yasuyuki Suzuki

Probation Officer, Chief of 3rd Examination
Division, Kanto Regional Parole Board, Japan

Mr. Tsutomu Tochigi

Judge, Tokyo District Court, Japan

ObserverMr. Ichiro Ishigami

Coordinator for the Planning of Construction,
The Construction and Maintenance Division,
Ministry of Justice, JapanTHE 106TH INTERNATIONAL TRAINING COURSE
Overseas Participants
Mr. Ikteder Ahmed

Director Judicial Administration Training
Institute, Bangladesh

Mr. Crispin Lincoln Jeffries

Superintendent of Police (Community Policing),
Police Headquarters, Belize

Ms. He, Min

Director, Research Section, Minister’s Office,Ministry of Justice, China

Mr. César Augusto Rivera Arteaga

Social Psychologist, Department of Criminal
Policy, Ministry of Justice, El Salvador

Ms. Sera Tagilala Bernard

Police Prosecutor/Sergeant, Police Prosecution
Office, Fiji

Mr. Poon King-lai

Superintendent (Acting), Tai Lam Centre for
Women, Hong Kong

Mr. Karamvir Singh

Deputy Inspector General of Police,
Headquarters of the Director General of Police,
India

22

APPENDIX
Ms. Justina Dwi Noviantari

Chief, Section for Preparation of Rehabilitation
Module for Drug Addicts, Directorate of
Rehabilitation for Juvenile Delinquents andDrug Addicts, Ministry of Social Affairs,Indonesia

Ms. Mary Mukuhi Karau Kangethe

District Probation Officer, District Probation
Office, Law/Juvenile Court, Kenya

Mr. Darussalam bin Budin

Prison Superintendent, Sungai Petani Prison,
Malaysia

Mr. Muhammad Masood Khan

Lecturer (Law), Central Jail Staff Training
Institute, Pakistan

Mr. Godfrey Niggints

Commanding Officer, Correctional Service
Headquarters, Papua New Guinea

Mr. Arnulfo Bartido Repollo

Chief of Police, Tacloban City Police Station,
Philippines

Mr. Lee Sang-won

Senior Supervisor, Choonchun Correctional
Institution, Republic of Korea

Mr. John Mark Parafea

Assistant Commissioner of Police—Crime, ACP/
Crime, Police Headquarters, Solomon Islands

Mr. Pongpat Riangkruar

Provincial Chief State Attorney, Child Rights
Protection Div., International Affairs Dept.,
Office of the Attorney General, Thailand

Mr. Joseph Narsiah

Acting Superintendent of Prisons, Trinidad,
West Indies

Mr. Bob Thomson Dickens Ngobi

Assistant Commissioner of Welfare andCommunity Affairs/Chief Public Relations
Officer, Police Headquarters, Uganda

Japanese Participants
Mr. Noboru Aitani

Family Court Probation Officer, Osaka Family
Court, Japan

Mr. Masakazu Kawabe

Technical Officer, Narcotic Control Officer,
Yokohama Branch, Kanto-shin’etsu Regional
Narcotics Control Office, Japan

Mr. Kazuhiro Kuwabara

Probation Officer, Shizuoka Probation Office,Japan

Ms. Mihoko Manabe

Assistant Judge, Nagoya District Court,
Toyohashi Branch, JapanMr. Soichiro Nishioka

Unit Chief of General Affairs, Kyoto Probation
Office, Japan

23

ANNUAL REPORT FOR 1997
Mr. Michio Sano

Police Inspector, Juvenile Division, National
Police Agency, JapanMr. Hiroki Shimizu

Immigration Inspector (Special Inquiry Officer),
Narita International Airport Office, Tokyo
Immigration Bureau, Japan

Mr. Kazuto Shinmon

Chief Specialist in Charge of Psychological
Assessment, Hakodate Juvenile Classification
Home, Japan

Ms. Yuriko Tsubaki

Chief Specialist of Education Division,
Marugame Juvenile Training School for Girls,
Japan

Mr. Hideyuki Yamaguchi

Public Prosecutor, Okazaki Branch, Nagoya
District Public Prosecutors Office, Japan

Mr. Tadatsugu Yamoto

Public Prosecutor, Hikone Branch, Ohtsu
District Public Prosecutors Office, Japan

ObserverMs. Korbkul Winitnaiyapak
Kaewtipaya

Senior State Attorney, Legal Affairs Division,
Office of the Attorney General, Thailand

THE 107TH INTERNATIONAL TRAINING COURSE
Overseas Participants
Ms. Pauline Christine Ngo Mandeng

Officer in Charge of Research, Directorate ofLegislation, Ministry of Justice Cameroon

Mr. Guan, Fujin

Deputy Director of the First Special Investigation
Department, General Bureau of Anti-Corruption
and Bribery, Supreme People’s Procuratorate of
the People’s Republic of China, China

Ms. Patricia Cordero Vargas

Trial Prosecutor, Public Ministry, Costa Rica

Mr. Winfred Ansah-Akrofi

Assistant Superintendent of Police (Prosecutor),
Ghana

Mr. Madan Lal Sharma

Joint Director, Central Bureau of Investigation,
India

Mr. Ersyiwo Zaimaru

Head, Sub-Division for Monitoring and Evaluation,
Division of Cooperation for Foreign Legal
Affairs, Bureau of Law and Public Relations,
Attorney General’s Office, Indonesia

Mr. Jonathan John Mwalili

Officer in Charge of Prosecutions, Prosecutions
Branch-Nairobi Area, Kenya

24

APPENDIX
Ms. Lithnarong Pholsena

Deputy Director of Administration of Justice
System, Ministry of Justice, Lao People’s
Democratic Republic

Mr. Abdul Razak Bin Haji
Mohamad Hassan

Assistant Commissioner of Police Royal Malaysia
Police, Police Headquarters, Sarawak
Contingent, East Malaysia

Mr. Mohamed Jameel Ahmed

State Attorney, Attorney General’s Office,Republic of Maldives

Dr. Meen Bahadur Poudyal Chhetri

Under Secretary, Ministry of Home, Nepal

Mr. Zafar Ahmad Farooqi

Deputy Director, Economic Crime Wing,
Federal Investigation Agency, Economic Crime
Wing, Pakistan

Mr. Menrado Valle Corpuz

State Prosecutor II, Department of Justice,
Philippines

Mr. Lee, Yong-Hoon

Public Prosecutor, Inchon District Public
Prosecutor’s Office, Republic of Korea

Mr. Winston Cheng Howe Ming

Deputy Public Prosecutor, Attorney General’sChambers, Singapore

Mr. Gamalath, Suhada Kalyana

Senior State Counsel (Prosecutor), Attorney
General’s Department, Sri Lanka

Ms. Somjai Kesornsiricharoen

Senior State Attorney, International Affairs
Department, Office of the Attorney General,
ThailandMr. Alex Mwachishi Chilufya

Senior Prosecutions Officer, Department of
Prosecutions, Zambia

Japanese Participants
Mr. Kyoji Ishikawa

Judge, Osaka District Court, 5th Criminal
Division, JapanMr. Hiroyasu Ito

Maritime Safety Officer, 9th Maritime Safety
Headquarters, JapanMr. Yoshitaka Izumi

Probation Officer, Utsunomiya Probation Office,Japan

Mr. Yutaka Kubo

Judge, Nagoya District Court, JapanMr. Hideki Kurashige

Prison Officer, Yamaguchi Prison, JapanMr. Yasuo Nakazawa

Public Prosecutor, Urawa District Public
Prosecutors Office, Japan

Mr. Takahiro Saito

Public Prosecutor, Tokyo District Public
Prosecutors Office, Japan

25

ANNUAL REPORT FOR 1997
Ms. Mariko Suzuki

Public Prosecutor, Otsu District Public
Prosecutors Office, Japan

Mr. Toshiaki Takahashi

Police Inspector, 2nd Investigative Division,
Criminal Investigation Bureau, The National
Police Agency, Japan

Mr. Takahiro Ueda

Public Prosecutor, Osaka District Public
Prosecutors Office, Sakai Branch, JapanMr. Hiroki Yamanishi

Public Prosecutor, Toyama District Public
Prosecutors Office, Japan

THIRD SPECIAL SEMINAR FOR SENIOR CRIMINAL JUSTICE OFFICIALS
OF THE PEOPLE’S REPUBLIC OF CHINA
Mr. Wang, Dan-Bo

Director, Management Division, Bureau of
Reeducation through Labor, Ministry of JusticeMs. Hao, Qing-Hua

Assistant Director, Bureau of Prison
Administration, Ministry of Justice

Ms. Zhao, Lin-Na

Deputy Director, International Affairs Division,
Department of Foreign Affairs, Ministry ofJustice

Mr. Sun, Qian

Deputy Director-General, Criminal
Procuratorate Department, Supreme People’s
Procuratorate

Mr. Wu, Jian-Ping

Section Chief, Imprisonment and Detention,
Procuratorate Department, Supreme People’s
Procuratorate

Ms. Li, Shu-Fen

Research Fellow, Ministry of Public Security

Ms. Ji, Su-Lan

Associate Research Fellow, Institute of Public
Security, Ministry of Public Security

Mr. Wang, Ming-Da

Vice President, Beijing High People’s Court

Ms. Ye, Xiao-Ying

Judge, Supreme People’s Court

Ms. Guo, Yan-Dong

Judge, Supreme People’s Court

26

APPENDIX

THE NINTH MEETING OF THE AD HOC ADVISORYCOMMITTEE OF EXPERTS ON UNAFEI WORKPROGRAMMES AND DIRECTIONSLIST OF EXPERTS
United Nations
Mr. Joseph Acakpo-Satchivi

Mr. Mohamed E. Abdul-Aziz

Overseas
Mr. Wang Lixian

Secretary, Fifth Committee of the General
Assembly and the Committee for Programme
and Coordination
United Nations, New York
Senior Crime Prevention and Criminal Justice
Officer, United Nations Crime Prevention andCriminal Justice Division
United Nations Office at Vienna

Director-General, Foreign Affairs Department,
Ministry of Justice
People’s Republic of China

Ms. Nazhat Shameem

Director of Public Prosecutions
Fiji

Dr. Barindra Nath Chattoraj

Professor and Head of National Institute of
Criminology and Forensic Science, Ministry ofHome Affairs
India

Dato’ Mohd Ismail B. Che Rus

Commissioner of Police, Director, Criminal
Investigations Department, Royal Malaysia
Police Headquarters
Malaysia

Mr. Ved V. Kshetri

Public Service Commission
Nepal

Mr. Chronox D. Manek

Deputy Public Prosecutor, Public Prosecutors
Office, Department of Attorney General
Papua New Guinea

Mr. Severino H. Gaña, Jr.
*Rapporteur

Senior State Prosecutor, Department of Justice
Philippines

Mr. Thomas G.P. Garner*Vice-Chairperson

Editor, New Society, The Newsletter of
ACPF, and former Commissioner of Prisons,Hong Kong
Portugal/Hong Kong

27

ANNUAL REPORT FOR 1997
Mr. Han Youngsuk

Vice Chairman, Korea Crime Prevention
Foundation
Republic of Korea

Dr. S. Chandra Mohan

Official Assignee & Public Trustee
Singapore

Mr. H.G. Darmadasa*Rapporteur

Rtd. Commissioner of Prisons
Sri Lanka

Dr. Kanit Nanakorn*Vice-Chairperson

Former Attorney General and Professor,
Faculty of Law, Thammasat University andChulalongkorn University
ThailandJapan
Mr. Masaharu Hino

Superintending Prosecutor, Nagoya High Public
Prosecutors Office, and a former Director of
UNAFEI

Mr. Kunihiro Horiuchi

Private Practitioner, Ex-Director of UNAFEI

Mr. Kazutomo Ijima

Supreme Court Justice

Mr. Kiyoshi Isaka

Managing Director, Hachioji International
Training Center, JICA

Dr. Koya Matsuo

Professor, Faculty of Law, Jochi University

Dr. Koichi Miyazawa

Professor, Faculty of Policy Studies, Chuo
University

Mr. Minoru Shikita*Chairperson

Chairman of the ACPF Board of Directors,
and a former Director of UNAFEI

Mr. Hiroyasu Sugihara

Director-General, Public Security Investigation
Agency, and a former Director of UNAFEI

Mr. Yoshio Suzuki

Professor, Faculty of International Relations,
Asia University, and a former Director of
UNAFEI28

APPENDIX
APPENDIX

DISTRIBUTION OF PARTICIPANTS BY
PROFESSIONAL BACKGROUNDSAND COUNTRIES(1st – 107th International Training Programmes, 1st-3rd Special Chinese Seminars,
U.N. Human Rights Courses and 1 Special Course)

10
20
11
3

4
16

4
1

3
23
14
17
11
4
10
21
12
19
1
1
10
254

16
8
3
3
2
1

3
19
9
41
19
8
5
3
9
37

12

4

9
6
3

2
21
49

18
17
4
27
1

5
11
2
34
1

1
2
31
2
21
30
6
5
12
19
2
12
2

5
184

2
187

5
320

2
1
5
24
6
12
6
5

5

30

7

3

7
8
18
3
10
17
1
13

1
3
4

2
9

3
1

10
10

7

10

1

35

61

4

172

9
1
3

1

3
2
5

6
2
2

3

1

5

1

5

1

3
2
8

4

4
42

23
50
3
6
8
10
80
62
3
82
1
93
1
41
28
3
20
105
1
1
5
2
72
2
1
59
5
109
94
1
14
1
73
1
100
21
1
136
6
1
26
29 1,324
2

6
3
1

Total

1
17

5

Others

2
13

4
1
10
13
12
17
5
5

4

Training &Research Officers

4Social Welfare
Officers

3113Child Welfare
Officers

Correctional
Officials (Adult)

5

Family Court
Investigation Officers

Police Officials

8
10

Probation/Parole
Officers

PublicProsecutors

7
14

Correctional
Officials (Juvenile)

JudgesCountry
Afghanistan
Bangladesh
BhutanBrunei
Cambodia
China
Hong Kong
India
Indonesia
Iran
Iraq
JordanLao People’s Dem. Rep.
Malaysia
Maldives
Mongolia
Myanmar
Nepal
Oman
Pakistan
Philippines
Republic of Korea
Saudi Arabia
Singapore
Sri Lanka
TaiwanThailandTurkeyUnited Arab Emirates
Viet Nam
AS IA

Judicial and Other
Administration

Professional
Background

3

2
1
3
1
1

4
1

32

29

ANNUAL REPORT FOR 1997

3
2
2
1

1

1
3

5

2

4

1
1

1
3
2
9
1

1

1
6

5
2

2
1

1
1
1
1

2
1

2
4

1
3

4

1
1
20
5
1

4

13
1

8
1
8

13
2
2
2
6
2
53
17
3

1
5

1
1
1
2

1
1

1

15

0

8
1

0

0

11

0
1
1

8

3

1
1
9
2
2

1

1
21

2

3

12

1
1
10
2
5
1
1
41

7

2

1

2

20

2
1

0

1
5

0

0

3

1

1
3

Total

OthersTraining &Research Officers

Social Welfare
Officers

Child Welfare
Officers

Family Court
Investigation Officers

Probation/Parole
Officers

Correctional
Officials (Juvenile)

Correctional
Officials (Adult)

Police Officials

PublicProsecutors

30

JudgesCountry
Algeria
Botswana
Cameroon
Côte d’Ivoire
Egypt
Ethiopia
Ghana
GuineaKenya
LesothoLiberia
Mauritius
MoroccoMozambique
Nigeria
Seychelles
South Africa
Sudan
Swaziland
Tanzania
UgandaZambiaZimbabwe
AF R I CA
Australia
Fiji
Marshall Islands
Micronesia
Nauru
New Zealand
Papua New Guinea
Solomon Islands
Tonga
VanuatuWestern Samoa
THE PACIFIC

Judicial and Other
Administration

Professional
Background

3
2
2
2
4
4
4
3
32
3
1
1
5
2
9
2
1
19
2
14
3
7
3
128
3
43
4
1
1
2
34
4
11
1
4
108

APPENDIX
APPENDIX

1
3
1
3

2
3
1

9
3
1

1
2
1
1

4

1
1

3
1
1
10

2

2
9
1

1
1
1
1
1

17

1
13

0
122
338

0
202
422

5
40
1

1
2
83
539

6

2

0

1

2

0

1
3

0
72
285

0
64
101

0
153
227

0
52
57

0
38
44

0
2
47

0
42
86

Total

1
1
1

OthersTraining &Research Officers

Social Welfare
Officers

Child Welfare
Officers

Family Court
Investigation Officers

Probation/Parole
Officers

Correctional
Officials (Juvenile)

Correctional
Officials (Adult)

2

Police Officials

PublicProsecutors

Country
Argentina
2
Barbados
BelizeBolivia
Brazil2
Chile
1
Colombia
1
Costa Rica
2
EcuadorEl Salvador
1
GuatemalaHonduras
Jamaica3
PanamaParaguay
Peru
4Saint Lucia
1
Trinidad and Tobago
1
U.S.A. (Hawaii)
Venezuela
1
NORTH & SOUTH AMERICA 19
Bulgaria
Hungary
1
Macedonia
1
PolandEUROPE
2
JAPAN
97
TOTAL
413

JudgesJudicial and Other
Administration

Professional
Background

5
1
1
1
2
15
6
1
7
2
11
6
1
1
3
4
1
4
10
2
20
2
2
1
8
7
110
1
1
1
1
0
4
42 96984 2,643

31

MAIN ACTIVITIESPART TWORESOURCE MATERIAL SERIES
No. 53

I. Work Product of the 107th International Training Course“The Role and Function of Prosecution in Criminal Justice”

UNAFEI33

ANNUAL REPORT FOR 1995

34

REMARKS BY PROGRAMMING
OFFICER
MAIN ACTIVITIES
1. The 107th International Training Course was conducted at UNAFEI
from 1 September to 20 November 1997 with the main theme, “The Roleand Function of Prosecution.” Twenty-nine participants (overseas: 18,
Japanese: 11) attended the Course from various regions of the world.
2. Fundamentally, the rationale of the main theme can be summarized
as follows:
The prosecution of offenders and the appropriate request of punishment
are indispensable procedures in the realization of criminal justice. These
prosecutorial functions are commonly established in the criminal
procedure of many countries. However, the personnel and organization
authorized to assume these functions, the breadth of their authority, andthe actual practices of prosecution differ among the various criminal
justice systems worldwide. Since prosecution is a fundamental componentof the criminal justice system, it is essential to deliberate on issues relatedwith its proper role and function in order to seek a better prosecution
system and ultimately a better criminal justice system.
Moreover, the role played by the prosecution system in each country
has grown even more important as crime becomes more sophisticatedand organized or new criminal phenomena appear. Thus there is a greatneed for the involvement of prosecutors in the promotion and developmentof national criminal policy by such means as planning and drafting
legislation related to criminal justice.
3. UNAFEI usually selects themes which relate to all fields of criminal
justice, invites participants from these different fields, and discusses
issues from much broader perspectives. This method is commonly called
the “integrated approach”. However, in this 107th International Training
Course, in consideration of participant evaluations in past programmes,
UNAFEI selected the above main theme focusing only on prosecution.
Moreover, the Institute invited overseas participants who were prosecutors
or whose profession was closely related to this field.
Prosecutors selected from prosecutorial organizations attended fromsuch countries as China, Costa Rica, Indonesia, the Philippines, theRepublic of Korea, Sri Lanka and Singapore. Police prosecutors
participated from such nations as Kenya, Ghana and Zambia. From suchcountries as Cameroon, India, Malaysia, Nepal and Pakistan, participants
had prosecution-related duties in their respective Ministry of Justice,
Ministry of Interior, Criminal Investigation Department of Police and soon.

35

ANNUAL REPORT FOR 1995

Eminent experts were invited from abroad as well as Japan to share
their knowledge and experiences. They too were mainly from theprosecution field.
4. Participants actively engaged in discussions during the Individual
Presentations, lectures by experts and UNAFEI faculty, and the Group
Workshop sessions regarding the role and function of prosecutors at thestages of investigation, initiation of prosecution, trial and so on. Discussion
results are summarized as follows:a. In regards to the investigation authority of prosecutors, there aremainly three types of legal systems: one which grants them authority toinvestigate all kinds of crimes (Japan and the Republic of Korea); one
which allows prosecutors to investigate specific types of crimes (China
and Indonesia); and one which does not provide prosecutors with theauthority to investigate (Ghana, India, Malaysia, Pakistan, Singapore,
Sri Lanka, Thailand and Zambia). Incidentally, Cameroon adopts a dual
system: in the region of so-called English-speaking Cameroon, the third
system applies and in the region of so-called French-speaking Cameroon,
the second system prevails.
Also there are countries which have the system of police prosecutors,
namely, India, Ghana, Malaysia, Pakistan, Singapore, Sri Lanka andZambia; while other countries are strangers to such system, that is, China,
Costa Rica, Japan and the Republic of Korea.
In whatever system, when prosecutors give appropriate instructions
and supervision based on their ample legal knowledge and experience,the standard of quality of police investigation is enhanced. The police
can obtain from prosecutors precise guidelines as to what criminal facts
can be deduced, what evidence should be collected, and who should beprosecuted. Moreover, prosecutors prevent illegal investigation activities
as well as the undue infringement of human rights.
There are countries where prosecutors are given investigation authority
and they independently exercise it. This system helps to preclude politicalinfluence on the development of investigation and prosecution.
b. It is a fundamental mission of the police and prosecutors to selectcases which should proceed to criminal trial. In order to realize criminal
justice, prosecution must be initiated decisively and expeditiously when
there is sufficient incriminating evidence against the accused and criminal
punishment is warranted. At the same time, proceedings should not betaken against a person who is not likely to be found guilty.
36

MAIN ACTIVITIESThe evidentiary standard is not uniform as to when prosecution or nonprosecution is determined: prima facie (India, Kenya, Pakistan and Sri
Lanka); reasonable prospect for obtaining guilty judgment (Singapore);and proof beyond reasonable doubt (China, Japan and the Republic ofKorea).
Prosecutors should make this selection of prosecution or non-prosecution
objectively, legally and independently. The establishment of an
independent prosecutorial organization contributes to guarantee such
desirable exercise of prosecution powers. It is also important to improve
the internal and external checking systems for prosecutorial abuse; toguarantee the systematic independence of prosecution; and to secure
capable human resources through sound appointment practices andcontinued education.
Even if there is sufficient evidence to prove the accused guilty, it may
not always necessary to impose punishment on him. In such cases, thesystem of suspension of prosecution is of great use, as is employed insuch countries as Japan and the Republic of Korea. Such a decision ismade by public prosecutors on the merits of each individual case. Saidsystem has contributed to preventing the unnecessary imposition ofpunishment, reducing the number of cases handled by the courts, andmitigating the overcrowding situation in prisons and jails. Therefore,barring insurmountable hindrances, it is worthwhile for some countries
to introduce this system.
c. In regards to judgment by the courts, some jurisdictions enjoy ahigh conviction rate (Indonesia, Japan and the Republic Korea), but others
suffer from a low conviction rate (India, Nepal, Pakistan and Sri Lanka).
There are conceivable circumstances which lead to such differences: theability of investigation agencies to collect evidence; the evidentiarystandard for indicting a suspect; the exactness of selection of cases byprosecutors for bringing cases to the courts; the strictness of rules ofevidence; the credibility of witness testimony; and the speediness of trial.
The conviction rate cannot be the sole and absolute standard, but it isan indicator for measuring how effectively the criminal justice system
functions. It shows the results of effective investigation, the precise
selection of cases for trial, and the prosecution’s appropriate performancein the courts. Too low of a conviction rate reflects unsuccessful endeavors
at any of these stages.
Prosecutors must play an important role in realizing speedy trial. The
causes of trial delays are manifold. For example, some derive from the37

ANNUAL REPORT FOR 1995

court’s organization and its administration of cases (shortage of judges,
sporadic trial dates, etc.); others relate to prosecution’s activities (lack of
preparation, inappropriate assessment of cases, etc.); some are caused
causes by the defence (dilatory tactics, uncooperative attitude, etc.); andothers include such issues as the non-appearance of witnesses. Whatever
the circumstances, prosecutors are required to make a plan forestablishing their case, to sufficiently prepare the necessary proof, andto secure witnesses to appear in the courts.
In addition, prosecutors should contribute to securing an appropriate
sentence by proffering sufficient evidence to the court of first instance toassist in its decision-making or even, when necessary, making an appeal
to a higher court.
5. It is my firm belief that, by creating a forum of participants mainly
from the prosecution field, the 107th International Training Course
profoundly and substantially discussed the current problems in the areaof prosecution and successfully identified some effective countermeasures.
In particular, the participants comparatively studied the characteristicfeatures of the various prosecution systems represented in the Course,
and compiled concrete means for the improvement of their own respective
systems.
The materials provided in this volume carry salient features of the
Course materials and discussion results, but of course are not exhaustiveof the entire results of the Course. As to administrative information
concerning this Course, please refer to UNAFEI Newsletter No. 94.
I applaud all the participants of the 107th International Training Course
for their tireless dedication to achieve better training results, thereby
contributing to the development of criminal justice throughout the world.
I also extend my deep appreciation to all the people concerned who
provided valuable assistance to the successful completion of the Course.
I sincerely hope that the day will come in the near future when theseeds of knowledge sown during the 107th International Training Coursebear fruit in the form of the better administration of criminal justice inthe respective countries of the participants.

Yuzuru Takahashi
107th Course Programming Officer andChief of Training Division38

107TH INTERNATIONAL
TRAINING COURSE
UNAFEI PAPER
UNAFEI PAPER

THE CRIMINAL JUSTICE SYSTEM IN JAPAN:
PROSECUTION
I. PUBLIC PROSECUTORS
A. Qualification
In Japan, a private attorney, a judge anda public prosecutor have quite the same
qualifications. There are other different
qualifications1, but they are so exceptionaland rare that only the important ones will
be focused upon.
To become a Japanese legal practitioner,
one must pass the National Bar
Examination, which is one of the mostdifficult examinations. About 700
candidates (about three percent those whotake the examination) pass each year. The
average age of successful candidates isabout 28 years old. Since most candidates
graduate from a university at the age of 22
or so, most of the candidates study under
the financial support by their parents forseveral years.
After passing the Examination, theymust take a two-year training course aslegal trainees at the Legal Research andTraining Institute of the Supreme Court.
Legal trainees are government officials
paid by the Supreme Court. The training
period consists of two phases:(1) academic training at the Institute forthe first four months and the last fourmonths; and(2) sixteen months of practical training.
Each trainee is dispatched to acertain prefectural district court,
public prosecutors office and private
law office.
This practical training enables thetrainees to choose their future careers
based on a comparison of each role.
1

See, e.g., the Court Organization Law, Articles 41,
42 and 44 (CJLJ p. 23), and the Public Prosecutors
Office Law (hereinafter PPOL), Article 18.

B. Recruitment
After completing such training, trainees
can become a private attorney, a judge or apublic prosecutor. Roughly speaking, morethan 500 trainees become private
attorneys, about 100 trainees become
judges and about 40 to 80 trainees become
public prosecutors annually. The possible
reasons for the smallest number include
the toughness of the work and frequenttransfers. If a judge or a public prosecutor
quits his job, he can become a private
attorney, and most of them do so. At
present, there are about 2,100 judges, 1,100
public prosecutors and 16,000 private
attorneys in Japan. Similarly, a private
attorney also can become a judge or a publicprosecutor. However the number of suchjudges or public prosecutors is quite small2.
C. Organization and Training
In Japan, the prosecution systemcomprises the Supreme Public Prosecutors
Office (headed by the Prosecutor-General),
8 High Public Prosecutors Offices (headed
by a Superintending Prosecutor), 50
District Public Prosecutors Offices (headed
by a Chief Prosecutor) and 203 branches,and 438 Local Public Prosecutors Offices(consisting mainly of Assistant Public
Prosecutors3).
Regarding the size of district publicprosecutors offices, the average office has
10 public prosecutors. The smallest one
has only 5 public prosecutors, and thelargest one has more than 200 publicprosecutors. Each office has a Chief and a2

In the last eight years, only 30 private lawyers havebecome subsequently judges. Only six professors
or assistant professors in legal science inuniversities have become judges since 1969 otherthan Supreme Court Justices.

39

RESOURCE MATERIAL SERIES No. 53
Deputy Chief Prosecutor, who do notinvestigate and handle trials, but rather,focus on supervisory and administrative
matters. Thus, for example, in the smallest
office, only three public prosecutors
actually investigate and prosecute cases.
In small offices, the public prosecutor who
investigates and indicts a suspect, is thesame person who handles the trial. In
contrast, in large offices, two different
public prosecutors carry out these duties,
working in either the Investigation
Department (usually called “Criminal
A f f a i r s D e p a r t m e n t ” ) o r t h e Tr i a l
Department.
First-year public prosecutors used towork at one of the largest offices such as
Tokyo, Osaka or Sapporo for only one year.
Since two years ago, they undergo a twomonth training all together at the Research
and Training Institute of the Ministry ofJustice. Afterwards, they are assigned toa relatively large-sized public prosecutors
office, other than the Tokyo office, for 10
months. Then they are transferred every
two or three years. In their first ten years
as public prosecutors, most of them workat various sized offices.
During their career, public prosecutors
receive three kinds of job-related training
at the Research and Training Institute of
the Ministry of Justice, in addition to thefirst-year training described above.

3

The number of assistant public prosecutors is about900. Their qualification is different from publicprosecutors’. They have to pass a special
examination conducted by the Ministry of Justiceafter working in a criminal justice agency for acertain period. See PPOL Article 18, paragraph 2.
They deal with mainly misdemeanors like theft andtraffic offenses.

40

1. Course for Third- and FourthYear Public Prosecutors
The number of participants is limited toapproximately 40 at one time. It is
conducted twice a year for a duration ofseven days each time. The purpose of thiscourse is to develop the expertise of publicprosecutors who deal with general criminalcases. It consists of lectures anddiscussions. The lectures are given byexperts in various fields, including seniorpublic prosecutors, on fundamental
knowledge and skills necessary to performbetter as a public prosecutor, including
bookkeeping and accounting. Discussions
are based on real cases to find out how theyshould deal with them for better
disposition.
2. Course for Eighth- and NinthYear Public Prosecutors
The number of participants is limited toapproximately 40 at one time. It is
conducted twice a year for a duration of two
weeks each time. The purpose of this course
is to provide special expertise in theinvestigation and disposition of cases of tax
evasion, bribery, crimes related to public
security, and various other complex
economic crimes. It also consists of lecturesby experts and senior public prosecutors,
and discussions based on relevant cases.
3. Course for Twelfth- andThirteenth-Year Public
Prosecutors
The number of participants is limited
approximately 15 at one time. It is
conducted once a year for a duration of one
week. The purpose of the course is different
from the other courses. Considering thatthe participants are relatively senior andexperienced, and that they are expected tooccupy a status in the hierarchicalstructure of public prosecutors offices inwhich they will be required to give advice
to junior staff members, the purposes of thecourse are limited to administrative ones,

107TH INTERNATIONAL TRAINING COURSE
UNAFEI PAPER
such as developing knowledge and skills
about personnel management and theadministration of the organization. It
consists of lectures by various individuals
and discussions based on practical cases
involving personnel or administrative
matters.
D. Status (Independence andImpartiality)
Public prosecutors have a status
equivalent to that of judges. They receive
equal salaries according to the length of theterm in office. Their independence andimpartiality are also protected by law.
They are thought to be impartial
representatives of the public interest.
Aside from disciplinary proceedings, theycannot be dismissed from office, suspended
from the performance of their duties orsuffer a reduction in salary against theirwill, with some exceptions.4
Prosecutorial functions are part of theexecutive power vested in the Cabinet5, andthe Cabinet is responsible to the Diet intheir exercise.6 The Minister of Justice
should have the power to supervise publicprosecutors to complete his responsibility
as a member of the Cabinet. However,prosecutorial functions have a quasijudicial nature, inevitably exerting animportant influence on all sectors ofcriminal justice, including the judiciary andthe police. If the functions were controlled
by political influence, then the wholecriminal justice system would be

4

See PPOL Article 25. Exceptions are stipulated in
Articles 22 (retirement), 23 (physical or mental
disability, etc.) and 24 (supernumerary official). The
age of retirement is 63, except the ProsecutorGeneral who retires at 65.
5 The Cabinet consists of the Prime Minister and theMinisters of State. Not less than half of the
Ministers must be chosen from among the membersof the Diet (Constitution, Articles 66 and 68).
6 See Articles 65, 66 and 73 of the Constitution.

j e o p a r d i z e d . To h a r m o n i z e t h e s erequirements, Article 14 of the Public
Prosecutors Office Law provides that “[the]Minister of Justice may control andsupervise public prosecutors generally7 inregard to their functions.... However, inregard to the investigation and dispositionof individual cases, he may control only theProsecutor-General.8” The Minister ofJustice cannot control an individual publicprosecutor directly.
In addition, many public prosecutors are
assigned to key positions in the Ministryof Justice, for example, as Vice-Minister ofJustice and Director-General of the
Criminal Affairs Bureau.
E. Functions and Jurisdiction
The different levels of public prosecutors
offices correspond to a comparable level inthe courts. Consequently publicprosecutors exercise such functions such as
investigation, instituting prosecution,
requesting the proper application of law bycourts, supervising the execution ofjudgement and others which fall under
their jurisdiction (PPOL articles 4 to 6).
When it is necessary for the purpose ofinvestigation, they can carry out theirduties outside their jurisdiction (CCP
article 195).

7“Generally” means, for example, to set up generalguidance for crime prevention, the administrativeinterpretation of laws and how to dispose of affairs
related to prosecution to maintain their uniformity.
8 This control was practiced only once in 1954. Whenpublic prosecutors investigated a big bribery caseinvolving several high-ranking politicians and tried
to arrest the Secretary-General of the majority
party, the Minister of Justice, who belonged to thesame party, ordered the Prosecutor-General to avoid
the arrest, effectively terminating the investigation.
However, since it produced severe criticism fromthe public through the mass media, the Minister ofJustice had to resign quickly.

41

RESOURCE MATERIAL SERIES No. 53
II. SURVEY OF CHARACTERISTICS
OF THE JAPANESE CRIMINALJUSTICE SYSTEM
A. Characteristics
Before explaining the Japaneseprosecution system, I would like to pointout some characteristics of the Japanesecriminal justice system in order to avoid
any confusion.
(1) Public prosecutors have the authority
to investigate cases referred by thepolice and to initiate investigation
without the police, which, in practice,they often do.
(2) Only public prosecutors may request
a judge to detain suspects, andprosecute suspects. Japan does nothave private prosecution or police
prosecution.
(3) J a p a n c o n d u c t s v i r t u a l l y n oundercover operations or electronic
surveillance.
(4) P u b l i c p r o s e c u t o r s h a v e t h e
discretionary power not to prosecute
even though the evidence is sufficient
to secure a conviction. Many factors
are considered, especially thep o s s i b i l i t y o f t h e s u s p e c t ’s
rehabilitation without formal
punishment.
(5) Japan has no jury or assessor system.
All cases are handled by competentjudges.
(6) Even if a suspect admits his guilt, thecase is brought to trial. Moreover,plea bargaining is unavailable.
(7) Japan has the hearsay rule. However,a judge could admit a written
statement, especially taken by aprosecutor, as evidence under certain
conditions. Therefore prosecutors
often produce written statements
based on an interview with a suspect
or a witness.

42(8) Public prosecutors recommend a
specific sentence (e.g., specific termof imprisonment, specific amount offine, etc.) at the closing statement. Ifthey are not satisfied with a judge’s
decision, whether conviction or
acquittal, they can appeal to a higher
court.
(9) Japan implements the theory of“presumed innocent” until provenguilty. However, since the aquittal
rate is extremely low (below 1
percent)9, if a suspect is indicted, he/she is likely to be regarded as “guilty”
by people in the society.
(10) As mentioned below, the evolution of
the Japanese criminal justice system
is quite unique. It was influenced by
the United States system (especiallyin trial; namely, an adversarial
system) after World War II, but stillretains the influence of the civil law
countries.
B. Historical Background
Japan had been strongly influenced by
the Chinese legal system since the seventh
century. In 1890, Japan enacted the Meiji
Constitution under the influence of the civil
law countries, especially Germany. After its
defeat in World War II, Japan has
implemented the present Constitution
influenced by United States law since 1947
without any change. A number ofprovisions regarding human rights on
criminal matters were introduced to or
strengthened in the Constitution,
specifically, Articles 31 to 40. In short, no
person shall be arrested or searched or
seized without a warrant issued by acompetent judge except in the case of aflagrant offence; be compelled to testify

9

It might be attributable to several elements,
including the discretionary power of publicprosecutors, a n d t h e h i g h p r o b a b i l i t y o f a
confession by defendants.

107TH INTERNATIONAL TRAINING COURSE
UNAFEI PAPER
against himself; and be convicted in cases
where the only proof against him is his own
confession. An accused10 has the right toretain his own counsel.
The Code of Criminal Procedure(hereinafter CCP) was also changed in1949. The CCP was greatly influenced by
the adversarial system, especially in trial,
and adopted the restrictive use of evidence
and the need for a warrant for all kinds ofcompulsory measures.
III. INVESTIGATION
A. Investigative Agencies
Since public prosecutors as well as thepolice are authorized to conduct
investigations (CCP articles 189 and 191),
I will explain the Japanese investigation
procedure as part of prosecutorial
functions. Of course, the police have thefirst and primary responsibility forcriminal investigation. Actually mostcriminal cases (over 99 percent) are
initially investigated by the police andother judicial police officers. Once thepolice investigate a case, they must refer
it to a public prosecutor together with
documents and evidence, even when thepolice believe evidence is insufficient. The
police have no power to finalize cases,
except for two minor types of disposition(see Figure 1).
Public prosecutors may investigate cases
themselves and often do so
supplementarily; that is, they interview
victims and main witnesses directly, andinstruct the police to further collectevidence, if necessary. Moreover, public
10 The Constitution provides the right to retain adefence counsel for the accused, meaning adefendant after indictment, and the Code of
Criminal Procedure provides the same right for asuspect. However, if he cannot hire a defence
counsel, the state will assign a defence counsel only
to an accused, not to a suspect (CCP articles 30 and
36).

prosecutors may initiate and complete
investigation without the police, and often
do so in complicated cases such as briberyor large scale financial crimes involving
politicians, high-ranking government
officials or executives of big enterprises. In
three major cities (Tokyo, Osaka andNagoya11), the public prosecutors offices
established a Special Investigation
Department, where a considerable number
of well-trained and qualified publicprosecutors and assistant officers are
assigned to initiate investigations. Since
April 1996, several districts have a Special
Criminal Affairs Department dealing withwhite collar crimes. If necessary, an ad hoc
investigation unit composed of prosecutors
and assistant officers can be organized.
However, in practice, it may be quitedifficult in many small-scaled offices
because of staff shortages.
B. Investigation Process
1. Outline
Figures 1 and 2 show the outline of theprocess of investigation, prosecution etc.,
for adults.
Since the Japanese system is unlike
some countries where an arrest is aprerequisite for prosecution, the police andpublic prosecutors conduct investigationand prosecution on a voluntary basis as
much as possible. Although investigators
arrest suspects in serious cases, even insuch cases, they collect as muchinformation as possible before arrestingthem and carefully examine the necessityof arrest, considering the suspect’s age andsurroundings, the probability of flight anddestruction of evidence.
11 The Special Investigations Departments in theTokyo and Osaka offices have a long history andhave investigated a number of cases relating tobribery, breach of trust, tax evasion, etc. However,
Nagoya’s department was just established in April
1996.

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RESOURCE MATERIAL SERIES No. 53
The procedure after arrest is as follows:(1) When the police arrest a suspect, theymust refer the suspect with
documents and evidence to a publicprosecutor within 48 hours otherwise
they must release him (CCP article
203).
(2) Unless the public prosecutor releases
the suspect or prosecutes the suspect,
the public prosecutor must ask a
judge for a pre-indictment detention
order within 24 hours after receiving
him. (CCP article 205).
(3) The pre-indictment detention period
is 10 days. The public prosecutor may
ask a judge for an extension of thedetention for up to 10 days, if
necessary (CCP article 208).
(4) The public prosecutor must release
the suspect by the termination of thedetention period unless prosecution
is initiated.
2. Arrest
In principle, no one may be arrested
without a warrant issued by a judge.
Enough probable cause must exist to
believe that the suspect committed thealleged offence.
Police officers designated by law12 as wellas public prosecutors are authorized todirectly ask a judge to issue an arrest
warrant. Japan does not recognize the socalled “cognizable offence” that permits thearrest of a suspect without warrant.
However CCP provides two exceptions asfollows:

12 These police officers are designated by the National

or Prefectural Public Safety Commission and are
ranked at or above Police Inspector, which is thethird rank from the bottom (CCP article 199. 2).

44(1) Flagrant Offence (CCP articles 212
to 214):
Any person may arrest, without awarrant, an offender who iscommitting or has just committed an
offence; or(2) Emergency Arrest (CCP article 210):“When there are sufficient grounds
to suspect the commission of an
offence punishable by the death
penalty, or imprisonment for life or
for a maximum period of three years
or more, and if, in addition, becauseof great urgency a warrant of arrest
cannot be obtained beforehand froma judge, a public prosecutor, a publicprosecutor’s assistant officer or a
judicial police official may, uponstatement of the reasons therefore,
apprehend the suspect.” In this case,the procedure for obtaining an arrest
warrant from a judge shall be taken
immediately thereafter. If thewarrant is not issued, the suspect
must be released at once.
After receiving the suspect, the publicprosecutor must immediately inform himof the alleged offence and the right to hirea defence counsel, as well as give thesuspect an opportunity for explanation.
This is a public prosecutor’s first and mostimportant interview with a suspect because
he learns the suspect’s viewpoint. Theinterview is also important for a suspect
because he can observe how much the
public prosecutor knows about the facts or
how confident he is in proving the casethrough his words and attitude. If thesuspect presumes the public prosecutor haspoor knowledge about the case, the suspect
is not likely to confess.
3. Pre-indictment Detention
The public prosecutor must proceed to
the next step as above-mentioned in section
B. 1. b. If a public prosecutor arrests asuspect, the same procedure must be107TH INTERNATIONAL TRAINING COURSE
UNAFEI PAPER
followed within 48 hours after the arrest(CCP article 204).
The power to ask a judge for a detention
order is vested only in a public prosecutor.
The judge asked for the detention orderreviews all documents and evidence, andinterviews the suspect to afford him theopportunity to explain the alleged case.
The judge may order the suspect’s
detention for 10 days if there arereasonable grounds to believe that thesuspect has committed the offence, and(1) the suspect has no fixed dwelling;(2) there are reasonable grounds tobelieve that the suspect may destroy
evidence;or(3) there are reasonable grounds tobelieve that he may attempt toescape.
Otherwise, the judge must dismiss theapplication. (CCP articles 60, 207 and 208).
In practice, it is granted for the most partsince the police and public prosecutors
carefully screen suspects to be arrested ordetained (see Table 1).
When an extension of detention isrequested, a judge examines all the
documents and evidence without
interviewing the suspect. Then thedetention can be extended up to 10 days,
including weekends and national holidays.
A suspect’s maximum term of custody
before indictment is consequently 23
days13. By the termination of the detention
term, a public prosecutor should decide
whether to prosecute or release the suspect.
The power to prosecute is vested only in a
public prosecutor with one exception 14.
During the detention period, no suspect is

13 CCP Article 208-2 provides a further 5-day

extension for the crimes related to insurrection.
However its use is extremely exceptional and rare.
14 See section IV. 2, Exception to the Monopolizationof Prosecution: Quasi-Prosecution.

entitled to bail, but he may be bailable after
indictment (CCP article 88).
Furthermore, a suspect is usuallydetained in a police jail substituted for adetention house 15 during the abovementioned period even after referral to a
public prosecutor. CCP Article 198 isinterpreted that a suspect under arrest/
detention is obligated to appear before an
investigation official to be questioned whenrequested. In the Japanese system, thepolice and public prosecutors are expected
to find truth by interrogating a suspect,showing him parts of evidence, etc.
Detention houses in Japan are located in
the suburbs and insufficient to facilitatesuch needs. Accordingly, a judge permits asuspect to be detained in a police jail during
a detention period.
4. Relation between the Policeand Public Prosecutors
Investigation is defined as the wholeprocess of identifying an offender andcollecting evidence in order to prosecutehim when a crime is deemed to haveoccurred. Since prosecution does not
terminate until the case is finalized at thetrial stage, investigation may be needed
until then. Accordingly, the police continue
investigating even after referring a case to
the public prosecutors office. Since thepolice and public prosecutors arerespectively independent organizations,the relationship between both is basicallycooperative. Public prosecutors may
instruct the police and let the police assist
in their investigation, and the police are
required to follow the instructions by law(CCP article 193). Some police officers do
not want to admit that public prosecutors
h a v e s u c h p o w e r, e s p e c i a l l y i ninvestigations initiated by the police.
Rather they interpret such instructions arerequests which the police kindly accept.

15 Prison Law Article 1, paragraph 3.

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RESOURCE MATERIAL SERIES No. 53
Regardless of the different interpretationsof Article 193, public prosecutors
monopolize the power to request adetention order from a judge and toprosecute. The police, nonetheless, follow
public prosecutors’ instructions to
successfully complete their work.
In some difficult and complicated cases,
the detention term is not enough to collectsufficient evidence to decide whether toindict, since the criteria for indictment is
actually the same as “beyond a reasonable
doubt” of a trial. Thus, the police and publicprosecutors should work together quickly
and efficiently. Accordingly, in a murdercase, the police immediately inform a publicprosecutor. Then the prosecutor to be
assigned to the case usually goes to thecrime site and the place where the corpse
is located, and observes the autopsy by adesignated doctor. The prosecutor candirectly discuss with the police how toinvestigate the case, what problems exist,
and what kinds of evidence are at the crimesite.
5. Collection of Evidence
Unlike the U.S. and some othercountries, undercover operations are notallowed in Japan. Although it is said that
undercover operations can be used in theinvestigation of crimes related to drug and
gun trafficking, it is still unpopular,
because Japanese society perceives suchmethods as unfair and deceitful. Typicalinvestigative measures include scientificinvestigations, such as examination ofblood, fingerprints, hair, voice andhandwriting, which are fully utilized for
identifying the suspect.
Unlike the common law countries,“evidence” in Japan sometimes means not
only real evidence but written statements
taken by investigators unless thedifferences between both are intentionallystressed. Although investigators collect asmuch real evidence as possible, it isindispensable to collect witness statements

46

explaining the meaning of such real
evidence in order to find the truth. Written
statements are made in the following way:
Investigators interview a witness or asuspect, then they prepare a written
statement based on what he said. Afterthe investigators precisely read thestatement to him and he agrees with thecontent, he is requested to sign on the line
after the last sentence to guarantee thevoluntariness and veracity of thestatement.
Public prosecutors often take such
written statements of the main witnesses.
Of course, any statement untested by crossexamination is inadmissible as evidence intrial. However, CCP Article 321.1.2
provides that a written statement taken bya public prosecutor is admissible asevidence when:(1) the witness does not appear or testify
on the date for public trial because ofdeath, unsoundness of mental
condition, is missing or staying
outside Japan; or(2) the witness, appearing on the date,testifies contrarily to or materiallydifferent from his previous statement
contained in the document.
In the latter case, this shall apply when
the court finds that special circumstances
exist in which the previous statement ismore credible than the present testimony16.
There is stronger likelihood that it will be
admissible as evidence as compared to astatement taken by the police (Id. section
3). That is why public prosecutors often
make such written statements. Even when
the written statements made by both thepolice and public prosecutors may
inadmissible as evidence, they might beused for determining the credibility of thetestimony (CCP article 328).
16

For example, rape victims, or both victims andwitnesses of an offence committed by an organizedcrime group.

107TH INTERNATIONAL TRAINING COURSE
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Regarding a suspect’s written statement
made in the same way as above-mentioned,
if it, regardless of the source, contains a
confession or an admission of facts adverse
to his interest, it is admissible as long as
made voluntarily (CCP article 322). The
suspect does not have the right to be withhis lawyer during interrogation. Of course,
he has the right to remain silent and to see
and consult his counsel at any time.
6. Reasons of Public Prosecutors’
Investigative Authority
Some participants, especially those fromthe common law countries where the police
have the power of both investigation andprosecution, might not understand thewide power granted to Japanese publicprosecutors. However, each criminal
justice system is rooted in its society andhistory. Possible reasons are as follows:a) Theoretical Reason
Public prosecutors should know how toinvestigate because they have to know how
to prove cases beyond a reasonable doubt
in trial. The main reason for theinvestigative authority of publicprosecutors is to lead them to correct
decisions and check on police
investigations. If public prosecutors could
not interview witnesses or collect evidence
independently, they would have to rely on
the police investigation (which is a sort ofhearsay for public prosecutors) entirely andcould not overcome any problems which
may arise during by the police
investigation. In the Japanese system, thepolice investigation is strictly and carefully
checked by public prosecutors, who havethe same qualifications as judges. The
check is expected to be almost the same asthat by judges. This is a significant
safeguard for protecting the rights of asuspect since the Japanese police cannot
prosecute, and it would be difficult for themto realize fully what would happen in trial
and what evidence should be collected forconviction. Thus, the Japanese system
avoids subjecting a suspect, who is likely
to be acquitted, to a long detention and trial
by releasing him at an earlier stage.
Consequently, this system deeply respects
a suspect’s human rights.
b) Historical and Practical
ReasonAlthough public prosecutors offices were
established in 1872, public prosecutors did
not originally have the power to investigate
crimes independently. Since a preliminary
inquiry proceeding17 was available at thattime, public prosecutors either directly
brought a case to trial or asked for apreliminary inquiry proceeding. A court
precedent in those days denied theadmissibility of a suspect’s written
statement taken by a public prosecutor
regarding a case where the police arresteda suspect based on an arrest warrant.
Under such system, in 1896, the ratios ofprosecution, dismissal rate18 and acquittal
rate were 80 percent, 44 percent and 7
percent respectively. Gradually theinvestigative practice was established since
the people wanted to avoid prosecuting asuspect without sufficient evidence tosupport his conviction. The effort was
successful, and in 1921 the ratios ofprosecution, dismissal rate and acquittal
rate lowered to 31 percent, 5 percent and
17 In this system, an examining judge investigated acase to decide whether a particular suspect under
the jurisdiction of the District Court should beformally tried.
18 Under the previous system, if an examining judge
found in the course of preliminary inquiry
proceeding that the suspect should not be formallytried, he would finalize the case by “dismissal”.
Since the system of preliminary inquiry proceedings
no longer exists in Japan, the word “dismissal” nowmeans the dismissal of a case after brought to trial.
19 These statistics are quoted from “Textbook ofProsecution” issued by the Ministry of Justice(Japanese version), p. 7.

47

RESOURCE MATERIAL SERIES No. 53
1.6 percent respectively19. Subsequently,
public prosecutors’ investigative authority
was codified by law. Thus, this practicecontinues to the present, with publicprosecutors, as well as the police and otherlaw enforcement agencies, conducting fullinvestigations and strict screening of cases,
thereby receiving strong public support.
Good or bad, Japanese society has atendency to regard a person as an actual
offender even if only arrested, and much
more so if prosecuted. Therefore, from arehabilitative viewpoint, suchinvestigations are highly encouraged.
Additionally, the decrease the caseload of
the courts and the entire criminal justicesystem.
IV. DISPOSITION OF CASES
A. Initiation of Prosecution
There are two main forms of prosecution:formal and summary. If the case is serious
and the suspect deserves a penalty of
imprisonment or death, the prosecutor
indicts the suspect for formal trial even if
he admits his guilt. The prosecutor utilizes
summary procedure when the suspectdeserves a fine not exceeding ¥500,000,
admits his guilt and accepts a monetary
sentence. In general, minor offenses, suchas traffic violations or bodily injury throughprofessional negligence, are dealt withthrough this system. However, in cases
where a suspect accused of assault or bodily
injury confesses and compensates thevictims’ damage, summary procedure isalso utilized.
To indict, a public prosecutor must
submit a bill of indictment to the court,
identifying the defendant (usually byshowing the permanent domicile andpresent address, his name and date ofbirth), showing the offence charged and thefacts constituting such offence (CCP article
256). [See an example bill of indictment(translated into English) in Appendix.] Anarrest warrant, a pre-indictment detention

48

order and a document signed by the suspect
identifying his defense counsel areattached to a bill of indictment to makeclear the past procedure. The submissionof documentary or real evidence isprohibited at this stage, unlike the Chinesesystem.
If the suspect had been detained alreadywhen indicted, the pre-indictment
detention automatically becomes an afterindictment detention limited to twomonths. After these two months, thedetention term may be extended every
month, as required.
After indictment, the suspect’s situation
changes due to adopting the adversary
concept. The suspect should be detainedin a detention house and interrogation
regarding the indicted fact is prohibited inprinciple. He may now be bailable.
B. Monopolization of Prosecution
1. Principle
As stated previously, public prosecutors
have the exclusive power to decide whether
to prosecute (CCP article 247). Japan does
not have a system of private or police
prosecution; nor a grand jury or
preliminary hearing system conducted byjudges. In other words, the court cannot
recognize any crime unless publicprosecutors prosecute. This system iscalled “monopolization of prosecution,”
which is supported by the public becauseof the successful efforts by publicprosecutors mentioned in section III. B. 6.
2. Exception to the
Monopolization of Prosecution
The sole exception is called the system
of “Analogical Institution of Prosecution
through Judicial Action” or “QuasiProsecution” (CCP articles 262 to 269).
This system purports to protect the parties
injured by crimes involving abuse of
authority by public officials. A person, who
has made a complaint or accusation and is107TH INTERNATIONAL TRAINING COURSE
UNAFEI PAPER
not satisfied with the public prosecutor’s
decision not to prosecute, may apply to thecourt to order the case to be tried. The
court, after conducting hearings, must
either dismiss the application, or order thecase to be tried if well-founded. If theapplication is granted, then a practicing
lawyer is appointed by the court to exercise
the functions of the public prosecutor.
C. Non-prosecution
1. Insufficiency of Evidence
It is natural for public prosecutors not
to prosecute a suspect without sufficientevidence. The standard for whether toprosecute based on “probable cause”,“beyond a reasonable doubt” or otherstandards, differs from country to country.
Japanese laws do not clearly mention it.
However, there exists a burden of proof tobe met by public prosecutors, and one ofthe public prosecutors’ functions is torequest the proper application of the law
by the court. To abide by the laws sincerely,
the standard should be the same as that of
the court, that is, “beyond a reasonable
doubt.” In practice, public prosecutors
decide non-prosecution based on
insufficiency of the evidence under thiscriterion.
2. Suspension of Prosecution
One of the most unique characteristics
of Japanese criminal procedure is thatpublic prosecutors can drop cases evenwhen there is enough evidence to secure aconviction. This is called “Suspension ofProsecution.” Thus, this wide discretionary
power granted to public prosecutors has asignificant role in encouraging suspects’
rehabilitation.
The concept of discretionary prosecution
contrasts with that of compulsory
prosecution. The latter concept requiresthat prosecution always be instituted if
there are some objective grounds for belief
that the crime has been committed by thesuspect and if the prerequisites forprosecution exist. This prevents arbitrary
decisions by public prosecutors andvagaries in the administration of criminal
justice. On the other hand, the system of
discretionary prosecution is advantageous
in disposing of cases flexibly according to
the seriousness of individual offenses andthe criminal tendency of each suspect andin giving them the chance to rehabilitate
themselves in the society.
a) Application of suspension ofprosecution
N e e d l e s s t o s a y, i n p r a c t i c i n g
discretionary prosecution, arbitrarinessshould be avoided above all. Adhering to
CCP Article 248, public prosecutors must
consider the following factors concerning
the suspect and the crime:(1) The offender ’s character, age,situation, etc. Generally, youths or
the aged, having no or little previous
criminal record, or having had
difficult a childhood may be
advantageous factors for offenders;(2) The gravity of the offence;(3) The circumstances under which theoffence was committed. For example,
the motivation for the offence, andwhether or not and to what extent thevictim had fault in provoking theoffence; and(4) Conditions subsequent to thecommission of the offence. For
example, whether or not and to what
extent compensation for damages ismade; the victim’s feelings are
remedied; settlements between bothparties; the influence to the society;and whether or not the offenderrepents commission of the offence.
The most important factors for
suspension of prosecution arecompensation and the remedy of thevictim’s feelings. Thus, a suspect’s family,
employer and private attorney always try

49

RESOURCE MATERIAL SERIES No. 53
to compensate as much as possible to avoid
indictment.
Table 2 breaks down non-prosecution byjustification. The most common reason is“suspension of prosecution”, constituting
nearly 80 percent, followed by “lack or
insufficiency of evidence,” ranging from 14
to 15 percent. Table 3 reflects that around
one-third of all offenses (excluding roadtraffic violations) are disposed of bysuspension of prosecution: 32.7 percent in
1993, 34.6 percent in 1994, and 37.0
percent in 1995. Of course, in major
offenses such as homicide, robbery, rape orarson, the ratio is much lower than lessserious offenses.
b) Historical perspective
Reviewing the historical development of
the system, there is little doubt thatoriginally the impetus for this practicederived from the overburdening of thecriminal justice system attributable to theconfusion after the Meiji Restoration.
Although this system started around 1884,
the practice was not endorsed legislatively
until 1922. Originally, the practice wascommenced mainly for the purpose of
reducing criminal cases, particularly trivial
ones, for being brought before courts andthereby saving the costs of trial proceedings
as well as housing prisoners, including
those awaiting trial. Indeed the careful use
of time and expense at the trial stage wasregarded as an important factor in theefficient functioning of the criminal courts
and other institutions, including the publicprosecutors offices.
However, had it not been for theunderlying policy oriented to therehabilitation of offenders rather than thenecessity of satisfying such needs asadministrative efficiency and economy, thepractice could have hardly survived theprofessional criticism and the public fear
prevailing then. The government justified
the practice by asserting that the purposeof punishment was not only to deter the50

public by showing the authority of law, butalso to make the offender repent his
criminal conduct and recognize that heshould refrain from committing anotheroffence. Therefore, prosecution should beinstituted only when such purposes could
not be attained without resorting tocriminal sanctions. The practice ofsuspension of prosecution was consideredan effective measure not only of expediting
the processing of criminal cases, but alsoof facilitating the rehabilitation offenders.
In addition, the amended “Offenders
Rehabilitation Law 20 ” provides that aperson who has not been prosecuted
because of lack of its necessity could, if heapplied in an emergency case, getrehabilitation aid services such asaccommodations and food at rehabilitation
hostels during the six months after releasefrom arrest or detention. Publicprosecutors are expected to inspire asuspect to utilize this service for his smoothrehabilitation.
B. Restraints on the Prosecution
SystemAny use of discretion by a prosecutor isaccompanied by a risk of abuse. In orderto prevent an erroneous or arbitrary
exercise of discretion, there are several
systems of checks in Japan. The first works
as a self-check system. If the prosecutor
still makes an arbitrary decision, there are
two additional restrictions: (1) inquest ofprosecution and (2) analogical (or quasi)
institution of prosecution.
1. Internal Restrictions
In Japan, each public prosecutor is fullycompetent to perform his prosecutorial
duties. It can be said that each prosecutor

20 The effective date of the amended Law is April 1,

1996. However, the same provision was stipulated
in the “Law for Aftercare of Discharged Offenders”,
which was abolished on the same day.

107TH INTERNATIONAL TRAINING COURSE
UNAFEI PAPER
constitutes a single administrative agency.
On the other hand, being subject to thecontrol and supervision of senior publicprosecutors, their approval is required in
making prosecutorial decisions. It isevident that prosecutors themselves areaware that they may easily fall into selfrighteousness, leading to arbitrarydispositions, whether intentionally orunintentionally. It is sometimes very
useful, for especially young andinexperienced prosecutors, to consult asenior to discuss the best disposition of acase. Accordingly, the public prosecutors
offices have developed some procedures formaking their decisions more objective:(1) a prosecutor, whenever refraining
from instituting a prosecution, mustshow his reasons in writing; and(2) a prosecutor must obtain approval
from his senior, who in turn is careful
to examine whether his decision iswell grounded.
2. Inquest of Prosecution(Prosecution Review
Commission)
This system’s purpose is to maintain theproper exercise of the public prosecutors’
power by subjecting it to popular review.
The Inquest Committee consists of 11
members selected from among persons
eligible to vote for members of the Houseof Representatives of the Diet. It isempowered to examine the propriety ofdecisions by public prosecutors not toinstitute prosecution. The Inquest
Committee must conduct an investigation
whenever it receives an investigation
request from an injured party or a person
authorized to make a complaint or
accusation. In some instances, theCommittee can carry out investigations on
its own initiative, and is competent toexamine witnesses in the course of theinvestigation.
The Committee then notifies the Chief
Prosecutor of the District Public

Prosecutors Office of its conclusion. If the
non-prosecution is concluded improper by
the Committee, the Chief Prosecutor orders
a public prosecutor of the office to further
investigate of the case and to re-examine
the original disposition. After the reinvestigation and re-examination, thepublic prosecutor in charge must ask forthe approval of the Superintendent
Prosecutor before making the final
disposition.
Although the Committee’s verdict is notbinding upon the prosecutor, it is highly
respected in the re-investigation process.
Since Japan does not have a jury systemand private prosecution system, “inquestof prosecution” allows the public toparticipate in criminal justiceadministration. There is a Committee ineach district court.
3. “Analogical Institution ofProsecution through Judicial
Action” or “Quasi-Prosecution”(supra VI. B. 2.)
V. PUBLIC PROSECUTORS AT
THE TRIAL STAGE
A. Outline of a Japanese Trial
Japan does not have a jury trial21 andguilty plea system. All the cases prosecuted
are examined by competent judges. Evencases where the suspects or defendants
have confessed and admitted their guilt arebrought to trial, if they are deemed todeserve imprisonment. A “trial” in Japan
encompasses both the determination of
guilt stage and the sentencing phase.
21 The Jury Trial Law was enforced from 1923 to 1943.

Under the Law, a defendant had the right to choose
either a jury trial or a trial handled by competentjudges. However, defendants seldom chose a jury
trial. Possible reasons considered are that
defendants bore the cost, an appeal was prohibitedand the poor credibility of the jury trial. The law
has been suspended since 1943.

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RESOURCE MATERIAL SERIES No. 53
Public prosecutors bear the burden ofproving the defendant guilty “beyond areasonable doubt” in all cases. They must
establish the existence of an offence, theoffender’s identify, his sanity, criminal
intent or negligence, the voluntariness of
his confession at the investigative stage,etc. Although a Japanese trial is held
infrequently, for instance once or twice amonth, the defendants who admit their
guilt usually consent to the use of
documents (such as written statements) as
evidence, which simplifies and accelerates
the trial process. Thus approximately 90
percent of all the cases brought to trial arecompleted within six months in the first
instance. There are only some specificcases which have been on trial for several
years. However, generally speaking, Japan
does not suffer from serious delays in the
courts.
B. Preparation for Trial
After indictment, public prosecutors incharge of a trial have to plan how to provethe case by selecting documentary or real
evidence to prove it beyond a reasonable
doubt. In large public prosecutors offices,since public prosecutors in charge of trial
are separated from the public prosecutor
who indited the case, the former have tocarefully read and examine all the
documents and evidence. If they feel thenecessity to further collect evidence, they
do it themselves or request the publicprosecutor or the police officers who
investigated the case to do it.
To facilitate speedy trial, publicprosecutors are likely to select the best
documentary or real evidence. Then theymust give the defense counsel anopportunity to inspect the selected
documentary or real evidence prior to thetrial (CCP article 299). Discovery islimited to the documentary or real evidence
that the public prosecutor intends to use
in trial. If the defense counsel wants toinspect other documents or evidence, he

52

may make a request before the court to getan order for discovery under certain
conditions.
In complicated cases or serious cases,
defence counsels, judges and publicprosecutors have a preparatory meeting inorder for the trial to proceed smoothly.
Since the judges are fact-finders, unlike ajury system, they have only the indictment
sheet, the arrest warrant and the detention
order before the start of trial. They mustnot be informed of the contents of
documentary or real evidence on any
occasion other than the trial. Accordingly,
in such a preparatory meeting, they discuss
only court proceedings like the estimatednumber and duration of testimonies, notthe content of evidence.
C. Trial Activities: Testimony
Usually written statements of witnesses
are made by police officers and/or publicprosecutors at the investigation stage. If
not, the public prosecutor in charge of trial
interviews the witnesses and takes theirwritten statements before requesting thetestimony of the witnesses. The publicprosecutor usually requests the court toadmit the written statements as evidence.
Since most documentary evidence
constitutes hearsay and cannot be
admitted, only items of evidence whose
introduction the defense accepts can be
examined. When the defense disagrees tothe introduction of documentary evidence,the public prosecutor may request the court
to examine witnesses and/or the
defendant(s) instead. If such request is
granted, the court then determines whowill be examined.
A few days before the testimony, thepublic prosecutor again interviews thewitnesses to ensure their appearance on
the trial date and how they are going totestify. Since Japanese trials are held
infrequently, witnesses are sometimes
required to appear before the court several
times in seriously contested cases.

107TH INTERNATIONAL TRAINING COURSE
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Consequently, in cases where many
witnesses are required to testify, the trial
may continue for several years. If thewitnesses do not appear before the court
after several requests, they are detainedin order to testify at trial. If they refuse totestify, their written statements may be
examined at trial (CCP article 321).
Moreover, if the witnesses’ testimony
contradicts a prior statement, the written
statement can also be used to reduce thecredibility of their testimony, that is,
impeachment (CCP article 328).
After completing the examination ofevidence and witnesses for fact-finding, thedefendant is usually questioned by hiscounsel, the public prosecutor and judges
at trial. The defendant may rebut theprosecution’s evidence or show howrepentant he is and how he will rehabilitatein the future. At this stage, the evidence
relating to his environmental surroundings(such as criminal records, background,p e r s o n a l i t y, e t c . ) i s e x a m i n e d f o rdetermining sentence.
D. Closing Statement at the Trial
CCP Article 293 provides that “after theexamination of evidence has been
completed, the public prosecutor shall state
the opinion regarding the facts and theapplication of the law.” Also it has been along-standing practice in Japan, as well as
in some European countries, for the publicprosecutor at that time to express his
opinion as to the appropriate specificpenalty to be imposed upon the defendant.
The public prosecutor has discretionary
power in selecting from among a variety ofsanctions provided by law. Nevertheless,recommendations tend to be uniform
because of the public prosecutor ’s
subordination to the general direction of
the Prosecutor-General, who is mindful of
public opinion and issues directives fromtime to time. Throughout the country, asimilar recommendation is suggested forsimilar cases. This recommendation of a

specific penalty is initially determined by
the public prosecutor who indicted the case.
Of course, it can be changed according to
the different situation after indictment bya public prosecutor in charge of the trial.
Although such a recommendation does notbind judges, they give serious consideration
to the recommended penalty. If the publicprosecutor feels that the sentence isinadequate, he can appeal the sentence. As
a result, disparities in sentencing areprevented.
Whether to recommend a suspension of
execution of sentence is occasionallydiscussed among prosecutors, especially incases where even prosecutors presume thatthe defendant can rehabilitate himself inthe community. One opinion favors publicprosecutors making such recommendations
because they are representatives of the
public interest, which includes the interestof the defendant. The opposing opinion isthat such duties should be assumed by adefendant’s counsel or the judges. In fact,
most prosecutors do not recommend asuspension of execution of sentence.
Moreover, they sometimes stress that theexecution of sentence should not besuspended when they strongly believe thata defendant should be imprisoned.

53

RESOURCE MATERIAL SERIES No. 53
Figure 1
CRIMINAL PROCEEDINGS FOR ADULT OFFENDERS

Offence

Identification

Administative
fine fortraffic infraction(Police, etc.)

Referral to
public prosecutor
Investigation
initiated bypublic prosecutor,
etc.

Disposition of trivial cases

New Reception

PublicProsecutors
OfficeNon-prosecution

Prosecution
New Reception•Fine•Minor fine

Summary
Proceedings

Acquittal, etc.
Formal Trial(Count)Fine, etc.

Suspension of execution of sentence
Imprisonment

Protective measures (Hodoshobun)

Provisional
release(1) Suspension of execution ofsentence with probationary
supervision.
(2) Release on expiry of full prison
term.
(3) Release on expiry of term ofprotective measures.

(2)

Release onparole(Prison)Admission
Women’s
GuidanceHome

Detention
in a work house(1)

Admission

Release on parole(3)

New Reception(Probation Office)Release on expiryof term of
probation andparole

Revocation, etc.

Source: Summary of the White Paper on Crime 1996, Research and Training Institute, Ministry of Justice,
Government of Japan, p. 56. (Slight modifications)54

107TH INTERNATIONAL TRAINING COURSE
UNAFEI PAPER
Figure 2
INVESTIGATION PROCEDURE
Offenses

Investigation
by Prosecutors

Investigation
by Police

Not Arrested

Not Arrested

Arrested by
PoliceReleased by
PoliceArrested by
Prosecutors(48 hours)

Referred toProsecutors

Referred toProsecutors(Arrestee)

Released by
Prosecutors(48 hours)

Released by
Prosecutors(24 hours)

Petty Offenses
Designated by
Prosecutors

Request for
Pre-indictment
Detention Order
to Judge

Monthly Reportto Prosecutors

Interviewed
by Judge

Released

Detained(10 days)(10 days)

Prosecutors Decision

Prosecution
Non-prosecution

Note:

Trial
Summary (for Monetary Sentence)
Suspension of Prosecution
Insufficiency of Evidence
Etc.

The dark line indicates the most common procedure.

55

RESOURCE MATERIAL SERIES No. 53
Table 1
ARRESTEES AND DETAINEES AMONG SUSPECTS WHOSE CASES WEREDISPOSED OF BY THE PUBLIC PROSECUTORS OFFICERS,BY OFFENCE (1995)
Number of Suspects Arrested/Not Arrested
Total

Offence(A)

Arrested Arrested Arrested
and
by
and
Not
referred public released arrested
by police prosecutor by police
(B)
(C)

(B+C)
A

Request for Detention
Granted Denied D+E
B+C

(%)

(D)

(E)

(%)

Total

335,554

95,310350

5,978

233,91628.5

87,05898

91.1

Penal Code offences
Homicide
Robbery
Bodily injury
Extortion
Larceny
Rape
Others

243,266
1,875
2,156
24,163
9,197
126,357
1,428
78,09062,628946
1,512
10,7194,151
24,533
1,063
19,704

225
4
19
7
38
1
156

4,717
11
22
666
87
1,712
5
2,214

175,696
914
622
12,7594,952
100,074359
56,016

25.8
50.7
70.1
44.4
45.2
19.4
74.5
25.4

57,088
948
1,427
9,361
3,796
22,524
1,039
17,993

65
9
2
18
36

90.9
99.8
94.4
87.3
91.3
91.7
97.7
90.8

Special Law offences
Firearms and swords
Stimulant drugs
Others

92,288
4,170
24,10264,01632,682
2,028
16,206
14,453

125
5
19
101

1,261
222
77
962

58,2201,920
7,800
48,500

35.5
48.6
67.3
22.7

29,9701,525
16,067
12,378

33
5
5
23

91.5
75.4
99.1
85.2

Notes: 1. Traffic Professional Negligence and Road Traffic violations are not included.
2. Cases such as those resumed after suspension of the period of limitaiton, transferred to anotherpublic prosecutors offices, or involving juridical persons are not included.
3. The number of suspects not arrested includes those arrested for other offences.
Source: Annual Report of Statistics on Prosecution. Quoted in Summary of the White Paper on Crime 1996,
Research and Training Institute, Ministry of Justice, Government of Japan, p. 58.

Table 2SUSPECTS NOT PROSECUTED, BY REASON (1991-1995)
Suspension ofProsecution

Lack orInsufficiency
of Evidence

Non-existenceof Valid
Complaint

Lack ofMentalCapacity

Number%Number%Number%Number%Number

%58,25056,531
63,08260,52362,041

78.7
79.2
79.1
78.3
78.7

10,658
10,161
11,631
11,787
11,329

14.4
14.2
14.6
15.2
14.4

1,826
1,746
1,854
1,921
2,164

2.5
2.4
2.3
2.5
2.7

430
404
494
436
457

0.6
0.6
0.6
0.6
0.6

2,848
2,562
2,694
2,635
2,871

3.8
3.6
3.4
3.4
3.6

Year

Total

1991
1992
1993
1994
1995

74,012
71,40479,75577,302
78,862

Note:

Traffic Professional Negligence and Road Traffic violations are not included.

Others

Source: Annual Report of Statistics on Prosecution. Quoted in Summary of the White Paper on Crime 1996,
Research and Training Institute, Ministry of Justice, Government of Japan, p. 60.

56

107TH INTERNATIONAL TRAINING COURSE
UNAFEI PAPER
Table 3RATE OF PROSECUTION AND SUSPENDED PROSECUTION,
BY OFFENCE (1993-1995)
Offence

1993
1994
1995
Prosecution Suspension Prosecution Suspension Prosecution Suspension
Rate
Rate
Rate
Rate
Rate
Rate

Total

66.0

32.7

64.1

34.6

61.7

37.0

Penal Code offences(excluding traffic
professional regigence)
Homicide
Robbery
Bodily Injury
Extortion
Larceny
Fraud
Embezzlement
Rape
Indecent Assault
Arson
Bribery
Gambling
Violent acts
Traffic Professional
Negligence

54.3

38.5

55.0

38.3

55.3

37.9

35.4
80.1
71.0
55.4
54.4
59.6
18.2
66.6
48.2
59.4
73.2
52.8
70.1
16.4

6.7
6.0
26.0
36.6
41.9
32.0
80.1
12.7
16.8
13.2
22.4
46.6
25.7
83.2

39.3
81.0
70.5
55.2
54.9
62.0
16.5
66.7
48.0
62.3
71.7
58.2
69.4
15.7

5.1
5.4
26.4
36.6
41.4
29.5
82.1
12.9
16.0
15.2
22.6
40.7
26.3
83.8

43.8
80.6
72.8
59.5
54.9
62.2
13.9
67.3
47.5
60.6
67.0
64.0
71.3
15.0

4.3
6.5
24.1
33.8
41.3
29.6
85.0
13.7
14.3
14.2
22.9
35.5
24.9
84.6

68.6

28.1

70.7

25.8

70.6

26.4

45.0

54.2

43.2

49.8

48.7

50.6

65.7
85.2
91.8
95.0

28.8
7.9
6.8
4.6

63.8
85.8
91.6
93.7

31.1
7.3
6.8
5.9

62.5
87.5
92.9
93.7

32.3
6.6
6.3
5.9

number of suspects granted suspension

× 100

Special Law offences(excluding road traffic
violations)Public Offices Election
Law
Firearms and Swords
Stimulant Drugs
Poisonous Agents
Road Traffic Violations
Note:

Suspension rate =number of suspects prosecuted and granted suspension

Source: Annual Report of Statistics on Prosecution. Quoted in Summary of the White Paper on Crime 1996,
Research and Training Institute, Ministry of Justice, Government of Japan, p. 59.

57

RESOURCE MATERIAL SERIES No. 53
APPENDIXSAMPLE OF INDICTMENT
Bill of Indictment
March 15, 1993
To: Tokyo District Court
A public action is hereby instituted in the following case.
Tokyo District Public Prosecutors OfficePublic Prosecutor, KONO Ichiro (his seal)

Defendant
Permanent Domicile:

Yoshida 823, Mizumaki-cho, Onga-gun, Fukuoka Prefecture

Present Address:

Room Number 303 of the dormitory of the Pachinko Parlor
named “New Metro”, Ebisu 2-4-7, Shibuya-ku, Tokyo

Occupation:

None

Name:

YAMADA, Taro

Date of Birth:

April 6, 1947

Status:Under detention

Fact Constituting the Offense Charged
At around 11 p.m., on February 22, 1993, the defendant stuck a knife (its edge isabout 10 centimeters long) into the chest (left side) of Akio Mori (24 years of age) with
the intent to murder on a street located in Ebisu 2-4-7, Shibuya-ku, Tokyo. The victim’s
death resulted from blood loss attributable to the stab wound in the chest at around
11:58 on the same day at YAMADA Hospital located in Komaba 3-1-23, Meguro-ku,
Tokyo.

Charge and Applicable Law
Murder58

Penal Code Article 199

107TH
INTERNATIONAL
TRAINING
COURSEVISITING
EXPERTS’
PAPERSVISITING EXPERTS’ PAPERS

SOME ASPECTS OF THE FRENCH PENAL PROCEDURE
Henri de Larosiére de Champfeu*
To explain the French procedure, which
is very different from the Anglo-Saxon
model in force in Great Britain, the UnitedStates, and the largest part of the Asiaticworld, it is necessary to present some of
the rules that govern the judiciary
personnel and the organization of thecriminal jurisdiction.
I. FRANCE: THE COUNTRY OF
WRITTEN LAW
French law is a mixture of Frank andGermanic customs with regulations comingfrom Roman law, which has profoundly
influenced the formation of legal concepts
still in force in the continental system.
Contrary to the common law countries, theFrench system has the law as its principal
legal source, and jurisprudence has only avery marginal creative role in the law. In
France, the principal rules have been
codified by the legislature. In criminal
matters, the Penal Code, promulgated by
Napoleon at the beginning of the XIX
century, has been replaced by a new penal
code in 1994. The Code of Penal Procedure,
which dates from 1959, was modified inprofoundly 1993.
International treaties and agreements
duly ratified have, in France, a superiorauthority to that of domestic law, and are
immediately applicable. France has, thus
ratified, the European Convention of
Human Rights in 1974, and has acceptedin 1981, the right of individual appeal by
any person before the European Court of
Human Rights in Strasbourg. Thus,
France has not only signed these* Referendary Judge of Appeal, Cour de Cassation(Criminal Chamber), France.

international commitments protecting
human rights, but has also accepted thatan international jurisdiction safeguards
their effective respect. Moreover, thedomestic courts have the right to put aside
the application of the national law if it does
not recognize one of the rights protectedby the European Convention of Human
Rights, or any other international provisionof the same rank.
II. UNITY OF THE FRENCHJUDICIARY BODY
In France, there are two different legal
systems, which for historical reasons dateback to the French Revolution. On the one
hand, actions at law against governmental
and administrative authorities are judged
by special courts called Administrative
Courts. They are organized in a hierarchyheaded by the Supreme Court of the
Administrative Body, the Conseil d’Etat(highest administrative court and advisory
body to the government in matters oflegislation).
Members of the
Administrative Court are recruited in thesame manner as high-ranking civil
servants.
On the other hand, all civil and criminalcases are judged by jurisdictions called the
judiciary, headed by a different Supreme
Court called the Cour de Cassation.
Members of this judicial court, the judges
as well as the public prosecutors, belong to
the same body in France, the Magistrature.
This term in France has a very different
meaning than the one in English, where
the word “magistrate” designates nonprofessional judges in charge of ruling incases of minor importance, whether civil
or criminal.

59

RESOURCE MATERIAL SERIES No. 53
III. THE SAME RECRUITMENT,IDENTICAL EDUCATION FORJUDGES AND PUBLICPROSECUTORS
French magistrates, judges and publicprosecutors, are recruited in the samemanner, i.e., by competitive entrance
examinations, and their education is
identical. Contrary to the Anglo-Saxon
system, judges in France are recruited fromamong students and not from experienced
jurists.
A very selective competitive exam isorganized each year for students receiving
a diploma after finishing at least four yearsof university studies in law. The candidates
admitted join the Ecole Nationale de laMagistrature (National School ofMagistrature) (whose main headquarters
are in Bordeaux, and was established in
1958 by General de Gaulle) where theyreceive training for two and a half years.
The number of places offered at the
beginning of each competitive exam
depends on the number of places vacated
due to retirement in the magistrature. On
average each year, 150 students areadmitted to the school, from more than
3,000 candidates. It should be pointed outthat the majority of candidates admitted
are women. The French magistrature ispresently in the majority female. Two othercompetitive examinations to enter theEcole Nationale de la Magistrature areorganized: one for civil servants having acertain seniority, and the other for persons
having held certain publicly electedfunctions, or other activities which
particularly qualify them for the exerciseof judiciary functions.
During their training at the Ecole de laMagistrature, the students are
remunerated. Their education consists oflearning the procedure and professional
techniques, as well as a training period of
one year at a court of justice. However,
the education has a probationary character60

as well. At the outcome of the final exam,certain students could be obliged to redo apart of their schooling, or be declaredunsuited for judiciary functions. Thosestudents declared qualified may choose topractice, according to their rank ofclassification at the end of the exam, as
judges or public prosecutors. They are thengiven supplementary training in the area
to which they will be nominated.
Approximately four-fifths of the 4,800
French judges and 1,800 public prosecutors
are trained at the Ecole Nationale de laMagistrature. However, it is possible tobecome a magistrate without passing thecompetitive entrance exam, or graduatingfrom the Ecole de la Magistrature.
Professional jurists and attorneys at law
for the most part, having practiced at least
eight years, could be nominated as a judge
or public prosecutor, after a few months ina training program, in order to verify theiraptitudes. Nonetheless, this type ofrecruitment is in the minority.
All magistrates are obliged, during their
entire career, to attend a one-weekcontinuous training program every year.
IV. DISTINCT STATUTORY RULESFOR JUDGES AND PUBLICPROSECUTORSDuring his career, a magistrate may
occupy successively the functions of judge
and public prosecutor. This is a directconsequence of the unity of the judiciarybody. However, the specificity of thefunctions of judge and public prosecutor isexpressed by district rules. Judges areirremovable ispo jure, they cannot be given
another assignment, nor have theirjurisdiction changed, even by promotion,
without their agreement. Judges are
independent and in the exercise of theirfunctions cannot be given orders from any
source. The disciplinary power over judges
belongs to the Superior Advisory Board of
the Magistrature, an organ composed in its

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
majority by magistrates elected by the
judiciary body. Public prosecutors could betransferred in the interest of thedepartment and receive a new appointment
without their consent, even though, inpractice, this is very rare. The disciplinary
power over public prosecutors belongs to
the Minister of Justice. The Superior
Advisory Board does not decide thesanction to be applied; rather, it may only
propose a sanction.
The promotions of judges and publicprosecutors follow rules in part distinct. All
magistrates are formally nominated by the
President of the Republic, but according todifferent procedure terms as that for judges
and public prosecutors. The heads of theprosecution departments at Courts ofAppeal are chosen by the Cabinet of thegovernment. Other public prosecutors arenominated on the advice of the Advisory
Board of the Magistrature. However, thisis only a simple advice which thegovernment need not take into account.
Judges are nominated in accordance withthe advice of the Superior Advisory Boardof the Magistrature. Thus, the government
cannot go against the advice of the Superior
Advisory Board in naming a judge, but it
could in the naming of a public prosecutor.
Moreover, the government takes no part inthe choice of certain judges, such as
members of the Cour de Cassation, or thosepresiding judges at misdemeanor andappeal courts. It is up to the Superior
Advisory Board to select the holders ofthese functions.
V. THE DEPARTMENT OF THE
PUBLIC PROSECUTOR: A
HIERARCHICAL INSTITUTION
Public prosecutors have as their task to
defend the interests of society before thesecourts. They must initiate legal
proceedings of criminal infractions before
the appropriate court, and demand thejudges to punish the authors. Beyond thistask, they intervene before civil courts incases where law and order is implicated.
Public prosecutors are in a hierarchy.
Collectively they form an institution, theDepartment of the Public Prosecutor, still
called “the parquet” (the prosecution
department).
At each of the 171 courts of higher
instance and the courts which judge all civil
and criminal cases at the first instance,
there is a department of the Public
Prosecutor composed of several publicprosecutors. The public prosecutors at the
court are placed under the authority of thehead of the Prosecution Department at the
Court of Appeals. There are 33 heads ofProsecution Departments at the Courts ofAppeal in France, and one Director of
Public Prosecution in each Court of Appeal.
The heads of the Prosecution Departments
at the Courts of Appeal are under theauthority of the Minister of Justice.
The Minister could give instructions ofa general nature to the heads of theprosecution departments and to the publicprosecutors, and ask them to initiate legal
proceedings in a particular manner for acertain category of infractions. The
Minister could also order the head of theProsecution Department at the court offirst instance to initiate legal proceedings
in a particular case, or to adopt a
determined attitude in an individual case.
In this event, the head of the prosecution
department must follow the instructions
given him, and initiate legal proceedingsin the direction desired by his hierarchy.
However, at the open hearing before ajurisdiction, the public prosecutor isentirely free to express his convictions
orally, and if he considers it useful, tocriticize the instructions given him, or thelegal proceedings he initiated. The
principle of the freedom of expression at
the hearing—very specific to thecontinental system—marks the adherenceof the members of the Department of the
Public Prosecutor to the judiciary. Under

61

RESOURCE MATERIAL SERIES No. 53
t h e h i e r a r c h i c a l a u t h o r i t y, p u b l i c
prosecutors must initiate legal proceedingsin accordance with the instructions given
to them. The judiciary body can express
itself freely before the judges. This rule isgiven in the saying, “the pen is slave, but
speech is free”. In practice, it is very rarethat public prosecutors receive orders inparticular cases. Their daily latitude ofmanoeuvre is important, and only cases
having a strong incidence on law and order,or having a political character give rise to
instructions from heads of prosecution
departments at the Courts of Appeal or the
Minister.
The institution of the Department of the
Public Prosecutor in France does not havean equivalent in the Anglo-Saxon system,with the exception of the “fiscal procurator”
in Scotland. French public prosecutors
have appreciably more extensive
responsibilities than those of members of
the Crown Prosecution Service in England.
VI. TOWARDS A RAPPROCHEMENT
OF THE STATUTORY RULES
BETWEEN JUDGES AND PUBLICPROSECUTORS?
The successive governments in France
between 1990 and 1997 tried to divert thehierarchical power of the Minister overpublic prosecutors in order to curb thecriminal proceedings against politiciansbelonging to the party in power, who wereaccused of illicit financing of politicalparties. This interference of the politicalpower in the normal functioning of judicial
institutions led to a very net rejection in
the public opinion. The electoral bodyseverely penalized, in 1993, 1995 and 1997,
the majority governments or thepresidential candidates who wanted to takeadvantage of their functions in order tohinder the course of justice.
Aware of these deviations, the Presidentof the Republic, in January 1997, entrusted
an independent commission, chaired by the62

Senior Presiding Judge of the Cour deCassation, to draw up proposals rendering
public prosecutors more independent fromthe executive power. The alignment of thedisciplinary system of the members of the
Department of the Public Prosecutor withthe one for judges, and the reinforcementof the intervention by the Superior
Advisory Board of the Magistrature in thenomination of public prosecutors is being
considered. Breaking with the custom of
his predecessors, the new Minister ofJustice, since June 1997, abstains fromgiving instructions to public prosecutors inparticular cases.
VII. THE ORGANIZATION OF
CRIMINAL TRIAL COURTS IN
FRANCE
Criminal courts in France consist of
judicial inquiry courts and trial courts. The
trial courts are to declare guilty or innocent
the defendants brought before them, andto apply the penalties provided for by law.
There are three categories of trial courts.
The Penal Code, in fact, classifies
infractions into three categories according
to their gravity. Each category of
infractions corresponds to a different trial
court.
The Police Courts, 454 in France, judge
the breach of police regulations, that is tosay, the least serious offences, liable, at the
maximum, to a fine of 20,000 francs, andfor which a prison term cannot be
pronounced. A single judge rules in thesecourts. Only the more serious petty
offences are prosecuted by the head of theProsecution Department at the courts offirst instance. For the minor offences, thelegal proceedings are done by the police.
In many cases for infractions of the Road
Regulations, the police do not bring theaffair before the court if the author of theinfraction accepts to pay a fine immediately
to avoid prosecution.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Infractions of a more serious nature,
called misdemeanors, are brought to trial
before the Tribunal Correctionnel (Court
sitting in criminal matters for
misdemeanors) (hereinafter referred to as
the Petty Sessions Court). This court isbenched by one or three judges, dependingon the gravity of the infractions. The legal
proceedings before the Petty Sessions
Court are engaged by the head of theProsecution Department at the court offirst instance. In France, there are 171
Petty Sessions Courts which judge eachyear around 400,000 cases. The Petty
Sessions Court can impose a prison termof up to ten years.
The most serious infractions, called
felonies, are brought to trial before theAssize Courts, numbered 95 in France.
These courts are composed of threeprofessional judges, as well as nine jurors
randomly picked from electoral lists. The
particularity of the French system resides
in the fact that the professional judges andthe jurors deliberate together, and conferin common as to the verdict and the penalty
to be imposed. The Assize Courts, since
the abolition of the death penalty in France
in 1981, could pronounce a punishment of
up to life imprisonment. They judge
approximately 2,500 cases per year.
The decisions of the Police Courts andthe Petty Sessions Courts could be theobject of an action before the Court ofAppeal, contrary to the decisions of the
Assize Court. There are 33 Courts ofAppeal in France. The judgment
pronounced by the court of first instancecould be the subject of appeal by the
defendant, the public prosecutor, and incertain cases, the victim. The Court ofAppeal again judges the case in its entirety,
from the point of view of the verdict andthe punishment, as well as of the facts andthe law.
The decisions of the Courts of Appeal andthe Assize Courts could be the subject ofan extraordinary action taken before the

Cour de Cassation (supreme court)
competent over the entire national
territory. The Cour de Cassation does notjudge the cases on its grounds. It assuresthat the decisions were rendered with fullrespect of the law. If it deems that an
unlawful decision was taken, it does notjudge the case but nullifies the judgment
and refers the case to another court to be
rejudged.
Finally, there exists specialized courts
judging infractions committed by persons
under the age of 18 years. These courts,
which are not open to the public, arecompelled to impose, when possible,
educative rather than punitive measures.
VIII. JUDICIAL INQUIRY COURTS
Since the beginning of the XIX century,
judges have participated considerably in
the investigation of criminal cases. Thus,in each of the 171 courts in the country,
there exists one or more Examining
Magistrates, numbering around 570, overthe entire territory. The Examining
Magistrate is a judge of the court, he isindependent and may not receive orders
from the executive power, the head of theProsecution Department at the court offirst instance, or another judge. He canplace a suspect in preventive custody before
trial. It is also possible for him to sit injudgment in a case that he has notinvestigated.
The decisions of the Examining
Magistrates are subject to appeal before theChambre d’Accusation, a specializedchamber of the Court of Appeal.
IV. LEGAL PROCESS OF CRIMINALPROCEEDINGS IN FRANCE: A
PROCEDURE IN THREE STAGES
After the presentation of the principal
aspects of the French legal and judicial
systems, the legal process of the criminal
procedure in France should be examined.
It consists of three stages: the63

RESOURCE MATERIAL SERIES No. 53
investigations made by the police of the
Criminal Investigation Department(C.I.D.), the judicial inquiry by the
Examining Magistrate, and the trial.
A. The First Stage of the Criminal
Proceedings: The Inquiry Madeby the Criminal Investigation
Department
When a crime is committed, it is up to
the police officers of the C.I.D. to record it,
search for the perpetrators, identify andarrest them, and inform the judicial
authority.
The police officers of the C.I.D., in urbanzones, are part of the national police andunder the authority of the Minister of theInterior. In rural zones they are part of
the national gendarmerie having a militarytraining and under the authority of Defence
Minister. Certain specialized services, inthe fight against organized or economic
crimes come under the Ministry of theInterior, and their jurisdiction covers bothurban and rural zones. The officers of the
C.I.D. under the Ministry of the Interioror Defence, are placed under the authorityof the Head of the Prosecution Department
at the court of first instance when
conducting their criminal investigations.
When an infraction is committed, theofficer of the C.I.D. must inform the Headof the Prosecution Department, who
generally asks the police officer to continue
the inquiry, but he could also remove thecase from him and give it to a police officer
belonging to another police service or to thegendarmerie. The public prosecutor could
give directives to the police officer in chargeof the inquiry, ask him to orient his
investigation in a given direction, or tocarry out certain acts of inquiry.
In France, the police have certain powers
if they act quickly when an infraction iscommitted. Specifically they can start an
inquiry immediately when a person iscaught red handed. In this case, it is64

possible for them to proceed to search the
domicile of the suspects without theirconsent, to seize objects useful in the
manifestation of the truth, arrest thesuspects and take them to the police
station. If the police react in a space oftime further removed from the commissionof the act, they must proceed to apreliminary investigation and do not havethe power of restraint, i.e., they cannotarrest a suspect, nor enter his home
without his authorization. In all cases,
officers of the C.I.D. can prescribe technicalor medical examinations, and transmit the
samples to a laboratory.
When a person has been arrested by thepolice, he can be detained at the police
station for a duration of 24 hours. This iscalled police custody. The person placed inpolice custody has several guaranties: hemay benefit from a medical examination
and request that a member of his family
be notified. However, the latter could be
refused if it interferes with the progress of
the investigation. The person placed inpolice custody can also consult with alawyer for 30 minutes. During police
custody, the person could be interrogatedand does not have the right to be assisted
by a lawyer during these hearings at thepolice station. The lawyer who conversedwith the person in police custody does nothave access to the procedure file drawn up
by the police and may not assist in theinterrogations. According to a movementof opinion that is presently developing inFrance, persons restrained by the police
should have the right to be assisted by alawyer during their interrogations from thevery start of their police custody.
The 24-hour detention period underpolice custody could be extended for a new
period of 24 hours by the head of theProsecution Department at the court offirst instance. Police custody could be
extended up to 4 days in drug or terrorist
cases. In the investigations concerning

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
these infractions, the consultation with alawyer takes place only 72 hours after thecommencement of custody.
In France, approximately 500,000
persons are placed in police custody eachyear, of which 100,000 for a duration of
more than 20 hours.
Decision to Institute Proceedings
When the police have finished theirinquiry, they communicate the results tothe head of the Prosecution Department at
the court of first instance, who may ask thepolice to make additional investigations.
The public prosecutor could, given theinquiry, classify the case, and not institutecriminal proceedings, even if it isestablished that an infraction wascommitted and the author identified. In
certain countries, such as Germany, thepublic prosecutor must initiate proceedings
for infractions that are exposed to him.
Thus, by virtue of the principle of thelegality of the proceedings, all infractions
must be prosecuted if the author is
identified. However, in France, the headof the Prosecution Department at the courtof first instance, could decide not toinstitute proceedings for an infraction
when the author is known because he is incommand of the timeliness of theproceedings.
However, the public prosecutor does nothave a monopoly on the institution ofproceedings. In France, the victim of an
infraction could also institute criminal
proceedings. The trial judge not only
decides as to the guilt of the defendant andthe penalty to be imposed, but also theamount of damages to be allocated to thevictim. Thus the proceedings instituted by
the victim before a criminal court will lead,
not only, to the attribution of damages tohis benefit, but also the pronouncement ofa penalty against the author of theinfraction.
If the public prosecutor takes thedecision to institute proceedings, he could

bring the case directly before the trial court,
when the inquiry made by the police iscompleted. This happens in approximately
90 percent of the cases where amisdemeanor has been committed.
However if the infraction committed is afelony, or if the misdemeanor in questionis particularly serious and complicated, thehead of the Prosecution Department could
refer the matter to an Examining
Magistrate.
B. Inquiry by the Examining
Magistrate
At the outcome of the police inquiry, themore serious and complicated cases aretransmitted by the public prosecutor to an
Examining Magistrate. The affair could
also be brought before the Examining
Magistrate by the victim, in the event thevictim decides to file a lawsuit. The
Examining Magistrate has at the sametime powers of investigation and action,and jurisdictional powers.
The Examining Magistrate must initiate
all investigative acts useful in the
manifestation of the truth. He could carryout any or all of these investigative acts
personally, but he is obliged to proceed inperson to the interrogation of the suspects,
who could, if they wish, be assisted by alawyer when they are questioned by the
Examining Magistrate. The Examining
Magistrate could relegate theresponsibility of investigation to the police
or experts. In this case, the police or theexperts are under his authority. The
Examining Magistrate conducts theinvestigations in an independent manner,i.e., he is not an auxiliary of the publicprosecutor. He must investigate both onbehalf of and contrary to the interests ofthe defendant. The investigations
conducted by him should not have as theirsole objective to find evidence against thesuspect, but also to uncover the truth. The
public prosecutor, the defendant and thevictim, could demand that the Examining

65

RESOURCE MATERIAL SERIES No. 53
Magistrate proceed to certain investigativeacts. The Examining Magistrate, if he does
not carry out the acts solicited, must
explain his decision by a ruling, which could
be appealed before the Chambred’Accusation. All the investigative acts are
written down in a report and placed in thefile, which is at the disposition of all parties.
The Examining Magistrate could decide totap telephone conversations.
The Examining Magistrate can indict
any person he suspects of having
participated in the acts concerning the casereferred to him. Thus, the Examining
Magistrate investigates the facts, not theindividual. He must search for the person
who committed the acts, and can indict all
those who participated.
The Examining Magistrate can also
place a suspect in preventive custody, andsend him to prison before the person
appears for trial. After a person has beendetained by the police at the station for aperiod of 48 hours—which could be
extended up to 96 hours in certain cases ofterrorism and drugs—the suspect, if he is
not judged, is freed. He could be placed indetention before judgment if the
Examining Magistrate decides upon it.
Also, the Examining Magistrate has the
choice of not placing the suspect indetention, but under judicial control, inorder to limit his movements and to keep
an eye on his activities. The decisions
rendered by the Examining Magistrateconcerning judicial control or preventive
custody could be appealed before theChambre d’Accusation.
Approximately one-third of the 50,000
persons detained in French prisons havenot been brought to trial. A public opinion
movement contests the power, often
considered excessive, granted by the law
to the Examining Magistrate to decidealone as to the detention of a suspect. The
reform projects contemplated are to remove
from the Examining Magistrate the powerof placing a suspect in preventive

66

detention, and to have this capacity
exercised by another judge of the court.
At the end of the inquiry, the Examining
Magistrate could estimate that there is not
sufficient evidence and renders a decisionof nonsuit. If he decides that the suspectcommitted the misdemeanor, he orders acommittal to trial before the Petty Sessions
Court. If he thinks that the suspectcommitted a felony, he transmits the caseto the Chambre d’Accusation, which could
refer the case to the Assize Court.
Therefore, the Examining Magistrate
not only conducts the inquiry, but also heappreciates the value of the evidence
gathered during the inquiry and decides
whether to continue or terminate theproceedings.
C. Pre-trial Procedure
Most of the time, it is the publicprosecutor who refers a case to the trial
court, when he estimates that the police
inquiry is finished and that there issufficient evidence to prove the existenceof a misdemeanor. This jurisdiction could
also be seized by the victim. However, inmore serious cases, the trial court is seizedby the decision of the Examining
Magistrate.
Before trial, the defendant is assisted bya lawyer, who has access to the procedure
file. The trial is public and the defendant
could, contrary to the rules in force in the
Anglo-Saxon countries, be tried in his
absence. The public prosecutor upholds theaccusation and indicates to the court which
penalties appear to be most appropriate toreprimand it.
The judge, at the trial stage of the caseand in order to decide the guilt, could take
into consideration all the elements of proof
that were presented before him. Contrary
to the system in force in common law
countries, France does not have theprinciple of the legality of proof. Thus,
testimonies, confessions before theinvestigators or the Examining Magistrate107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS(even if they are retracted afterwards),
documents, expert opinions, technicalanalyses, and the contents of telephonetaps are susceptible to be retained by thejudge in order to assess the guilt of asuspect. A simple indirect testimony isadmissible. It is up to the judge todetermine, in each case, the probativevalue of the different elements in theprocedure. The suspect is questioned at
the hearing, but is not sworn in. He is not
obliged to tell the truth, and his lies before
the judge are not punishable. The
accusation is upheld by the publicprosecutor before the court. However hemay freely present his observations before
the court, even to maintain that theprosecution is unfounded, or that the
infraction was not constituted. The publicprosecutor asks the court to pronounce a
sentence that he believes the mostappropriate for the defendant. It is up to
the judge to decide, case by case, according
to his intimate conviction.
This system confers a much more
important role to the judge than in AngloSaxon countries. The freedom given to thejudge to appreciate the probative force ofthe evidence presented before him may bedifficult to comprehend by someone who
exercises within the common law system,
used to handling the principle of thelegality of proof. If, in this respect, theFrench system offers less guaranties thanthe Anglo-Saxon system, it is, nonetheless,much more flexible.
Especially, the principal guarantee
offered to the suspect by the French
procedure is that he cannot be condemned
without a trial, even if he does not deny
the charges against him. The meaning ofa defence by the suspect becomes
immaterial in such cases. A conviction
cannot be pronounced if all the evidence
against the suspect has not been submitted
for review by the judge. In the common
law system, it is possible for a defendant
to plead guilty and be sentenced without

trial, even though the evidence against him
would not have been sufficient to find him
guilty had he been tried.
X. CONCLUSION
A country of written law, France at the
beginning of the XIX century set up acriminal procedure which rests on two
essential organs: the head of theProsecution Department at the court offirst instance and the Examining
Magistrate. Both belong to the same
judicial body. The head of the Prosecution
Department at the court of first instance,
placed under the authority of the Justice
Minister, conducts the police inquiries
when an infraction is committed, andintervenes during the entire procedure
representing the interests of society.
The Examining Magistrates, aninstitution proper to the continental
system, are completely independent andmake inquiries in the more serious case,at the request of the public prosecutor or
the victim. Their status protects them frompolitical pressures, and thereby avoids
important prosecutions of politicians frombeing hampered. However, it is more thanlikely that in the future they will lose thepower to decide alone the placement
suspects in detention before trial. This is
the direction of advancement of French
criminal procedure, and in line with theEuropean Convention of Human Rights, in
its attempts to increase the guaranties
offered to the suspects, yet at the same time
to assure an efficient supression of criminal
offences.

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RESOURCE MATERIAL SERIES No. 53

THE DEVELOPMENT OF THE PROSECUTOR’SJURISDICTION IN THE CRIMINAL JUSTICE SYSTEM OF
INDONESIA
Antonius Sujata*
I. INTRODUCTION
Formerly, in 1605 the IndonesianArchipelago was colonized by the Dutch
and in 1512, prior to the Dutchcolonization, several Indonesian territories,
especially Moluccas and Sumatera, were
under the control of Portugal.
To carry out their colonization ofIndonesia, the Dutch administration set up
the Dutch East India Company (Verenigde
Oast Indische Companie). With theestablishment of the Company, not only did
they succeed in eliminating the Portuguese
administration, but they also became aprominent trader controlling the spicetrade in Indonesia and managed to expand
their power over the territory. The Dutch
then gradually took over theadministration, legislation and judicature1of the areas which they ruled. The Dutch
East India Company formulated various
rules of the law, appointing officers toprotect their interests and also formed
distinct legal bodies. Initially, in the area
under their rule, the Dutch East India
Company put into effect the same laws
applicable to all walks of life, i.e., Dutch
law. But since the circumstances did not
permit and opposed reality (manyrebellions broke out), the Indonesian people
were subject to the customary law, which
as far as it was concerned that the Dutch

Law did not apply. 2 Indonesia declared
independence on 17 August 1945.
Indonesia was colonized by the Dutch formore than 340 years. So bearing in mind
the long period of said colonization, it isunderstandable that the Dutch legal
system has a very strong influence on
Indonesian law.
Up to now, there are still many legaciesof Dutch law remaining valid in Indonesia,
including the Civil Law Code, theCommercial Law Code, the Civil Procedure
Code, and the Penal Code as well as manyothers, which make up a total of about 300.
In order to adopt all the existing provisionsof the law before the birth of Indonesia (17August 1945), Article II of the Interim
Regulations of the 1945 Constitution statesthat all existing provisions of law shallremain applicable unless superseded by
new laws.
In Indonesia, the term prosecutor as weknow now as “Jaksa” has its origin traced
to the Sanskrit word “Adhyaksa”.3
At the time when the territories ofIndonesia were being divided into several
governments, among the duties of aprosecutor was to double up as a judge and,more often than not, a prosecutor also acted
as a defence counsel.

2* Public Prosecutor, Head of Planning Bureau,
Indonesia.
1 Supomo and Djoko Sutono, Sejarah Hukum Adat/
History of the Prescriptive Law in Indonesia, 16091948, Djambatan Publisher, Jakarta, Indonesia.

68

Kima Windu Sejarah Kejaksaan Republik
Indonesia 1945-1985/Forty Years’ History ofProsecution, Republic of Indonesia 1945-1985,
Attorney General of the Republic of Indonesia,
Jakarta, 1985.
3 Mr. Tresna, R Peradilan di Indonesia/Court inIndonesia, Pradnya Paramita, Jakarta, 1978.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The Dutch colonial administration
distinctively separated the duties of theprosecutor, judge and defence counsel.
However, the duties of a prosecutor as we
now have, experienced various
developments.
The Dutch put into effect the Criminal
Procedure Code for the first time inIndonesia through Law No. 23/1847. Basedon this law, the courts hearing cases
involving Indonesians were different fromthose for Dutch citizens.
Nevertheless the prosecution of criminalcases at both judicial bodies were handled
by prosecutors.
Apart from that, in accordance with thelaw, prosecutors are duty bound to defend
the rule of law and carry out the decisionof the court. After that, the duties ofprosecutors developed further to include
the powers to conduct investigation andfurther investigation. In fact, the said
power further was extended to include thefollowing:(1) power to exclude certain matters inpublic interest,(2) power to file an appeal,(3) power to file cassation to the Supreme
Court in the interest of the law,whether in criminal or civil matters,(4) representing the country andgovernment in criminal and civil
matters,(5) applying to a judge to place someone
in the hospital,(6) applying to a judge to dissolve a
corporate body, and(7) petitioning for the annulment of amarriage.
On 8 March 1942 the Japanese Army
took over administration from the Dutch
and Indonesia.
At that time there were six different
public courts in Indonesia namely:• The Supreme Court (Saikoo Hooin),• The Appellate Court—High Court(Kootoo Hooin),• The Court of First Instance (Tihoo
Hooin),• The Police Court (Keizai Hooin),• The District Court (Ken Hooin), and• The Municipal Court (Gun Hooin).
These courts were respectively assignedwith a prosecutor placed administratively
under the charge of the Head of
Prosecutors4 instead of a Resident (Headof Administration).
II. INDONESIA BOARD OF
PROSECUTORS AFTERINDONESIA’S INDEPENDENCE ON
17 AUGUST 1945
In the text of the Constitution, not evena word was used assertively or directly todescribe specifically the prosecution.
However, this does not mean that thepersons drafting the Constitution failed toturn their attention on the existence of theprosecution. The Board of Prosecutors,
which was formed at the time when
Indonesia was established, is stillrecognized and its existence remains as it
was by virtue of Article II of the Interim
Regulations.
Under the circumstances after
independence, the priority for theformation of the Board of Prosecutors was
as important as the formation of the Boardof Judiciary.
Since it is in unity with the board of
judiciary, it was best that both the judiciaryand prosecution be put under the JusticeDepartment. The criminal procedure code
currently prevailing adopted the criminal
procedure code left behind by the Dutch.
The New Indonesian Criminal Procedure
Code has been in effect since 1941.
Based on the laws contained in the
Criminal Procedure Code, the Board of
Prosecutors, consisting of all prosecutors,
is placed under the charge of the Attorney
4

Article 3 Osamu Seirei No. 3 1942; Act of Indonesia
No. 1 1942.

69

RESOURCE MATERIAL SERIES No. 53
General; but at provincial level, it is headedby Chief Public Prosecutor.
Prior to this, the Board of Prosecutors
was under the Interior Minister, and at
district level, all prosecutors were under
the Regent.5
Bearing in mind that the prosecution’sorganization is not autonomous, it isunderstandable that the local board ofgovernment has a strong influence over thefunctions of the Indonesian prosecution.
The position of the Indonesian Board of
Prosecutors saw another change upon theenactment of the Emergency Law No. 1/
1951. At that time, the Board of
Prosecutors, which was originally underthe Interior Department, was transferredto the Justice Department.
All prosecutors in the course of their
daily prosecution duties are attached to the
local court of first instance.
On 22 July 1961 with the enactment of
Law No. 15/1961, the Board of Prosecutors
was separated from the JusticeDepartment to become an autonomous
Board having its own organization under
the charge of the Attorney General.
Bearing in mind the change of status andorganizational position, the date of 22 Julyis considered by the prosecution as animportant day that marks the birthday ofIndonesian Prosecution in the postindependence era.
The whole prosecution organization isplaced directly under the power of the
President and is accountable according tohierarchy. The Attorney General being theAssistant of President shall be appointed
and retired by the President. According to
the constitution, the President of Indonesia
as the Head of State shall hold special
powers in relation to criminal matters byordering the Attorney General either to
5

A. G. Pringgodiado, Sejarah Pembuatan UndangUndang Dasar 1945/History of drafting the 1945
Constitution, Legal and Comunity Magazine, Year
3, No. 2, May 1952.

70

proceed with prosecution or withdraw
prosecution by granting amnesty or
abolition.
The position of the prosecution in the
structure of the Republic of Indonesia
vested with the executive power in the
aspect of justice has inherently taken root
since the era of the Governments of
Majapahit, Mataram and Cirebon.
During the colonial rule of the Dutch,
the main tasks of the Board of Prosecutors
were to protect the political, economic andsecurity interests of the colonialists.
However, during the independence, theprosecutors became the protectors of the
Republic of Indonesia against thecolonialists and other troublemakers.
After the Indonesian army had
succeeded in dispelling the remnants of the
supporters of the Dutch administration in
1950, several of the supporters were later
tried after undergoing investigation andthen faced with prosecution by the Attorney
General of the Republic of Indonesia.
For that reason at the time of hearing
cases involving military personnel, both theprosecutor and the judge hold honorary
military ranks, so much so that the
Attorney General is also acting as theMilitary Attorney General. The
organizational relationship with the police
apparatus is also different when comparedto the present setting.
The police apparatus carries out theinvestigation of criminal cases functionally
under the supervision of the prosecution
because the police investigation status is
to act in assistance to the prosecution.
As such the police apparatus, eventhough having its own organization, whencarrying out its duties in investigation, willinvariably obtain instructions from theprosecution.
The position of the police investigation
apparatus as assistant to the prosecution
until 1961 was actually efficient andeffective in handling criminal cases
because in the course of conducting

107TH INTERNATIONAL TRAINING COURSE
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investigation, the prosecution could
directly give instructions without thebureaucratic influence of the police board.
In the past the relationship between theprosecution and the armed forces,
especially in the handling of criminal
offenders who were military personnel, was
not a problematic one because the Attorney
General was also the Military Attorney
General. However, in 1971, the Civil Court
was distinctly separated from the Military
Court, thus rendering the Attorney General
only to powers of prosecution against
criminal offenders from among civilians.
In 1950, there was a condition touchingon the special privileges of a minister who
was charged for committing an offence(forum privilegiatum). It states that aminister could only be tried in the first andlast instance by the Supreme Court. For
example, a minister by the name of Sultan
Hamid was tried by the Supreme Court andthe public prosecutor was the Attorney
General.
The said special privilege stood only fora while and was later lifted because it was
not compatible with the basic principle thatevery one has equal status before the law.6
The position of the Attorney General as apublic prosecutor in cases at the Supreme
Court bears the consequences that the
Attorney General must be a professional
Master of Laws and from time to time heshall be obliged to appear in the Supreme
Court.
In other words, the Attorney General’s
post is a career rather than a political post(without experience as a prosecutor).
In its further development, in fact the
Attorney General has held a ministerial
post. By acting as an Assistant of the
6

Pasal 27 Undang-Undang Dasar 1945/Article 27 of1945 Constitution: All citizens have equal status
before the law and in government and shall abideby the law and the government without any
exception (The equal status of everyone in law andgovernment).

President, the post of Attorney General
constitutes a political post. However thismatter took place after the abolition of theregulations on special privilege on aminister to be tried by the Supreme Court(Forum privilegiatum). This post which ispolitical in nature means that it should not
be held by a Master of Laws or one who
has experience in prosecution work.
In fact since 1966 the Attorney Generalof Indonesia generally has come from themilitary circle, and only recently in 1990
and for the first time, the Attorney Generalcame from the Prosecution Department
itself.
III. PROSECUTION PRIOR TO THE
ENACTMENT OF THE NATIONAL
CRIMINAL PROCEDURE CODEThe National Criminal Procedure Codecame into force on 31 December 1981 andbefore this Criminal Procedure Codeexisted, the legacy of the Dutch Criminal
Procedure Code was in force.
Ta k i n g i n t o a c c o u n t i t s h i s t o r yoriginating from the legal product of thecolonial Dutch, it is understandable that it
contains numerous rules to protect thepower of the Dutch and too little opportunity
was given to the accused to seek justice.
In other words, in this penal code,human rights, i.e., the accused’s, were notaccorded with the necessary guarantee.
There was a dearth of protection for theaccused in respect of remand and legal
advice.
The accused might be remanded for along and unlimited period of time eventhough every 30 days it ought to beextended. Also there was no obligation thatduring questioning the accused could beaccompanied by a legal advisor.
At that time, the prosecution had an
extensive power because in law they could
conduct further investigation on all
matters apart from investigation
pertaining to criminal offenses economic innature, corruption and subversion (political71

RESOURCE MATERIAL SERIES No. 53
offence). The prosecutor also had the power
to coordinate the investigation machinerycomprising the police investigator andcivilian investigator from the government
sector.7 In coordinating said investigation
machinery, the prosecutor could provide
supervisory instructions or request that thecase be surrendered to the prosecution. Asa matter of fact, the prosecutor, being theperson who will appear in court, should
know about or complement the facts
required to prove the case. By directly
giving instructions or conducting
investigation himself, the case could be
disposed of more expeditiously.
Other than being speedier, any setback
or errors regarding its legal substancecould also be avoided. However, looking at
the other perspective, this system also had
weaknesses because of the overlapping of
powers as both the police and theprosecutor have similar powers, making it
highly possible that an accused person
could be investigated by the police and theprosecutor. There was no explicitness interms of criminal action, as the prosecutor
could investigate any matters.
This system although has its
advantages, certainly also has its
weaknesses.
A. Religious SectsAs regards the power of the prosecution,
apart from conducting investigation andfurther investigation or prosecution, it also
carries out supervision and takes action
against or dissolves the religious sects that
may endanger the community and nation.
According to the law, there are fivereligions recognized in Indonesia, namely,
Islam, Protestant Chistian, Catholic
Christian, Buddhism and Hinduism. Apartfrom the foregoing, there are religious sects
which do not fall within the import ofreligion originating from ancestral tradition
7

Section 2 of Law No. 15/1961 regarding the main
laws of prosecution.

72

and Indonesian culture. In practice, thistrend of belief often runs counter with thereligion recognized by the government, thus
causing many incidents of riots since theproblems between the religion and thisbelief are very sensitive. The prosecution
is duty bound to prevent the confrontation
by doing lawful surveillance or dispersing
said religious sects.
In order to segregate the religions
recognized by the Government from thecommunity’s religious sects, the Indonesian
Government has taken a different
approach.
The supervision of religions recognizedby the government is entrusted to the
Religious Minister, while the supervisionof the religious sects is carried out by the
Minister of Education and Culture.
According to the law, the police also has
the power to conduct supervision on
religious sects, but any supervision or
action by the police must be focussed on areligious sect which is nationwide in scale
and poses danger to the solidarity of thenation.
B. Economic Crime and Corruption
In 1960, there were many political flareups in Indonesia. To address this problem,
Law No. 5 of 1959 confers power to the
Attorney General in the name of the
President to give orders directly to thepolice force, as well as the power to order
preventive detention up to a maximum
period of one year without extension
against criminal offenders who commit
offenses economic in nature, corruption andthreaten the security of the nation by
preventing the implementation of thegovernment’s programme. Said power is
extraordinary because prior to this, it was
non-existent. (Bear in mind that the powerhas set aside the hierarchy applied in thepolice organization.)
The condition also deviated from theprocedure code which only gives power tothe prosecutor to effect remand for a

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
maximum period of 30 days with anextension of 30 days after obtaining theapproval of Head of Court. The
government is of the opinion that the periodcaused the commission of too muchcorruption, resulting in financial loss to thestate and there is no special legal provision
to curb it. Since the condition was sopressing, a legal provision was regulated
but only as a temporary measure until suchtime when a permanent legislative
provision could be formulated to prevent
corruption.
After it was enforced for about two years,
a satisfactory result was achieved.
However, since it is urgent in nature andspecifically meant for the prevention ofcorruption, it must be replaced bypermanent laws of corruption.8
The Corruption Law gives power to theprosecutors with the liberty to conduct
investigation into corrupt acts as follows:(1) Any person suspected of having
commited a corrupt act shall be
required to give evidence of assets
and properties of his spouse andchildren as well as the assets of thecompany he manages.
(2) Any person questioned as a witness
must give a statement.
(3) The right to refuse being a witness(right of refusal) is only given to
religious officers and doctors.
(4) The prosecutor can request for all
documents deemed necessary be
produced before him for his
knowledge.
(5) The prosecutor has the right to open,
examine and seize the letters sent bypost, telegram or telephone, which hesuspects to be related to a case ofcorruption that he is investigating.

8

Law No. 3 of 1971 regarding the Prevention of
Corruption, Republic of Indonesia Government
Gazette No. 39 of 1971.

(6) The prosecutor can at all times enter
the premises that he deems fit tocarry out his duty. If the occupierrefuses, he must be accompanied by
two witnesses.
In order to speed up investigation andprosecution in the case of corruption, there
are abiding conditions, namely:(1) The corruption case must first be
investigated and then prosecuted.
(2) Within three months after theaccused is remanded, his case must
be referred to the court.
(3) Within six months after the accusedis remanded, his case must have been
examined by a judge.
C. Threatening National Security
Apart from the power of the prosecutor
to handle corruption cases, there is also a
preventive power to place those who havethe inclination to threaten the security of
the nation in a certain district so that they
can not carry out their activities that could
endanger the interest of the nation.
This power was once applied on theleaders of the Indonesian Communist
Party. The people who supported therevolution were sent to Pulau Burn, buthave since been released.
Other than that, the prosecution also has
been vested with the power to carry out
investigation on those who commit offensesof subversion.
Even though the police also has thepower to carry out investigation onsubversion offenses, the majority of thesubversion cases put to trial were the resultof the investigation done by prosecutors.
The subversion law for the past 20 years
has created controversies (conflict of
opinion). The Government of Indonesia isof the opinion that the Anti-Subversion
Law 9 is still relevant to prevent any
9

Law No. 11/Pnps 1963 regarding the Prevention ofSubversion Activities, Government Gazette No. 23
of 1963.

73

RESOURCE MATERIAL SERIES No. 53
potential revolution attempts with theintention of alienating themselves from a
united Indonesia or to topple theGovernment of Indonesia for another party.
Those who wanted this law to beabolished are lawyers, human rights
activists and members of non-governmentalorganizations. They are of the opinion that
the Subversion Law is a tool to suppress
the groups who do not agree with or often
criticize the government policies.
The Indonesian Subversion Law iscontrary to human rights because in
essence the element to be controlled andtried is the opinion of a person and not theact he is carrying out. Every person isentitled to his opinion and this isuniversally recognized.10 Each time during
the court session of a case concerning
subversion, all legal advisors in their
opening statements would without
hesitation raise objections that theexistence of the Anti-Subversion Law isactually illegal as it is not consistent withthe basic freedom that has become one ofthe principles in the Constitution ofIndonesia. The formulation of theSubversion Law is not concrete andambiguous, thus making it open to abuse.
Since it is too abstract, there is a possibility
that its application will go beyond thedimension entrusted by the legislators.
As regards the difference of opinion, it
is generally said that the court has decided
that the Anti-Subversion Law is de facto
legal as law, which is currently in force andhas not been abolished by the House ofRepresentatives. As such all legal advisors
and human rights activists adopt reasons
which are material (substantial) in nature
while the prosecution and the courts adopt
reasons which are official in nature in orderto declare that the Indonesian AntiSubversion Law is still in force.
10 The Universal Declaration of Human Rights,

Proclaimed by the United Nation on 10 December
1948.

74

A subversive act includes any of thefollowing:(1) Toppling, damaging or undermining
the authority of the lawful
government or state apparatus,(2) spreading widespread hostility or
creating enmity, division, conflict,disturbance, turmoil, unrest among
the people or community or between
Indonesia and a friendly country,(3) disturbing, impeding or disorganizing
the industry, distribution, trade,cooperatives or transport run by thegovernment,(4) indulging in activities sympathizing
with the enemies of Indonesia or acountry which is not friendly withIndonesia,(5) damaging or destroying buildingsthat function for the benefit of the
public,(6) carrying out spying activities, and(7) committing sabotage.
The power of the prosecutor as aninvestigator handling subversion offenses
is much wider than the power as stipulatedby the law in general.
An investigating prosecutor under the
Anti-Subversion Law may enter a placeand search premises that are believed tobe connected with subversion activities.
According to general procedure, such power
can only be exercised against theperpetrator apprehended at the time ofcommitting the offence.
In investigating subversion cases, aprosecutor has the power to remand asuspect up to a period of one year without
having to apply for extension from a judge.
Apart from the substance or theformulation of the subversion offence whichis extensive in nature, the process ofhearing should be expedited. After the casebundle has been received by the court fromthe prosecution, the case must be heard
within 30 days.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
All judges only have 30 days to study thecase bundle and the case exhibits. If thejudge decides on acquittal, then theprosecutor can file an appeal. A subversion
case can still be heard and decided by the
court even though the accused is absent or
cannot be brought to appear before thecourt (in absentia).
D. Other
Other powers of the prosecutor also
include investigation on members of theHouse of Representatives11, Governor12 andJustice of the Supreme Court13.
Any investigation on a member of theHouse of Representatives must first havethe approval of the President. After that
the Attorney General will issue a warrant.
The investigation may be carried out by theprosecutors or the police.
The procedure of investigation on a
Justice of the Supreme Court is similar to
the investigation of a member of the Houseof Representatives. In respect of theGovernor, only the approval of the
President is needed without having to wait
for the warrant from the Attorney General.
However, the outcome of the investigationmust be reported to the Attorney General.
The procedure of obtaining the approvalof the President and a warrant by the
Attorney General shall be dispensed with
if a member of the House of theRepresentatives, a Justice of the Supreme
Court or a Governor:(1) is arrested in the act of committing
an offence,
11 Law No. 13 of 1970 regarding Procedure of Police

Action against Member/Leader of People’s
Consultative Assembly and the House ofRepresentatives, Government Gazette No. 73 of
1970.
12 Law No. 5 of 1974 regarding Administration Law
at District Level, Government Gazette No. 38 of
1974.
13 Law No. 14 of 1985 regarding Supreme Court,
Government Gazette No. 73 of 1985.

(2) commits offenses punishhable bydeath based on preliminary proof, or(3) commits offenses against the securityof the nation.
IV. THE POWER OFPROSECUTORS IN THE
EXECUTION OF A JUDGE’S
DECISION
A decision of the court always involves
two matters, either the conviction or
acquittal of the accused and adetermination as to the status of the case
exhibits.
In respect of the status of the case
exhibits, there are three possibilities,
namely, return them to the witness/accused, forfeiture to the state (to be
auctioned/derive benefit therefrom) andseizure for destruction.
Executing the decision of the court,
whether the person or the case exhibits,
shall be the duty of the prosecutor. In
executing imprisonment sentence against
a person who is newly convicted by the
court, the prosecutor shall take theprisoner to the prison/correctional service
officer.
In regards to case exhibits, theprosecutor is obliged to return them to thewitness or the accused and if the case
exhibits are to be auctioned or destroyed,
the prosecutor is obliged to carry it out.
In executing the decision of the court,
the prosecutor is obliged to prepare a
Summary of Report.
What about if the case involves a death
sentence? Capital punishment is still being
carried out in Indonesian, but its
application is very rare and very selective.
A death sentence is generally carried out
after the case has gone through a process
in which decisions have been made by the
Court of First Instance, the Appellate
Court, the Supreme Court and thePresident, who rejects the clemency
petition.

75

RESOURCE MATERIAL SERIES No. 53
In fact there are also cases which hadgone through a revisionary process by theSupreme Court. In the clemency petition
to the President, the legal advisor and theaccused himself will submit several points
for consideration, and the Attorney Generaland the Minister of Justice will present
their opinions.
That is why generally a death sentence
is carried out five years after the accusedhas been convicted of an offence.
There are several conditions in executing
the death sentence in Indonesia:14(1) Death sentence is carried out in the
Jurisdiction of the District Court thatpasses the sentence unless otherwise
decided by the Minister of Justice.
(2) The time and place of the death
sentence will be determined by the
Head of Provincial Police after
cousulting the opinion of the local
Chief Public Prosecutor.
(3) The Head of Provincial Police shallprepare the personnel, equipment
and other requirements.
(4) The prosecutor shall be informed ofthe execution of the death sentence
three days in advance.
(5) If the condemned prisoner wishes tosay something, his statement/
instruction must be put down in
writing by the prosecutor.
(6) The defence counsel of the accused
person may attend the execution of
the death sentence.
(7) The death sentence is not carried out
in public and will be carried out in as
simple a manner as possible.
(8) To carry out the sencence, the Headof Provincial Police will form a teamof marksmen comprising a Sergeant
and twelve Corporals led by a Senior
Officer.
14 Law No. 2/Pnps 1964 regarding the procedure of

executing the death penalty meted out by the court
in a civilian and military trial, Government GazetteNo. 28 of 1964.

76(9) The team of marksmen will not be
using their own weapons and they
will be under the charge of theprosecutor.
(10) The accused shall be brought to theplace of execution accompanied by aspiritual leader and his eyes will becovered with a piece of cloth.
(11) The distance between the accusedand the team of marksmen is 5 to 10
meters and the prosecutor will givethe command for the execution.
(12) The death of the accused will be
confirmed by a doctor.
V. THE STATUS OF PROSECUTORSAFTER THE ENFORCEMENT OF
THE NATIONAL CRIMINALPROCEDURE CODE
In 1981, Indonesia adopted its own
National Criminal Procedure Code to
replace the Criminal Procedure Code left
behind by the Colonial Dutch. We havealready stated that the Dutch Criminal
Procedure Code provided little protection
for accused persons. Below are the several
basic aspects found in the National
Criminal Procedure Code.
A. Presumption of Innocence
Based on the presumption of innocence,the suspect should be given his rights, suchas expedited questioning and be informedof his alleged act in the language
understood by him, the right to prepare his
defence, the right to an interpreter, getting
legal aid, the right to visits by family
members, and the right not to be burdenedby the onus of proof, because the onus of
proof lies in the public prosecutor.
B. Legal Aid at Every Stage ofQuestioning
The suspect is entitled to legal aid fromthe time he is arrested or remanded andquestioned.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
It is the right of the person involved in acase to have a legal advisor and to keep incontact with his legal advisor.
The legal relationship should be
unimpeded, which means the suspect can
put forward everything in preparation of
his defence without being supervised byany officer. If there is evidence that thelegal advisor abuses his right in his
conversation with the suspect, then at thatstage of examination the officer can give areminder.
If said reminder is ignored, then said
relationship will be limited, i.e., therelationship will be kept within sight but
not within hearing. In the case the suspectcommits an offence that carries a death
sentence or an offence punishable with 15
years’ imprisonment or more and he cannot
afford his own legal advisor, then the officer
handling his case shall provide him withfree legal aid.
C. Limited Period of Arrest/Remand
In order to remand a person, there must
be strong suspicion based on evidence thata person has committed an offence
punishable with 5 years’ imprisonment or
more. Other reasons include the tendencyof the suspect to abscond, hide or destroy
case exhibits or repeat the criminal act. If
the suspect thinks that the remand/arrest
is illegal, he can submit an application fora pre-trial review.
The investigator may obtain a remand
period of 20 days and it can be extended to
40 days by the public prosecutor.
The public prosecutor may obtain aremand for 20 days and be extended for 30
days. A judge may effect remand for 30days and extend it twice for 30 days (60days). The High Court (appellate court)
may effect remand for a period similar to
the District Court (court of first instance);
whereas the Supreme Court may effectremand for 50 days and the period can beextended twice for 30 days (60 days).

D. Compensation and Rehabilitation
The suspect is entitled to claim
compensation for wrongful arrest anddetention. A claim for compensation is anapplication to obtain pecuniarycompensation, while rehabilitation is aclaim to obtain the right or status lost due
to the questioning, arrest or remand.
The fundamental change in the National
Criminal Procedure Code concerns thesystem which is now known as the“Integrated Criminal Justice System”.
This means that the law enforcers,
especially the police and prosecutors, aredistinctly defined in terms of their function,
but between them there is a functional
coordination relationship. They are clearly
designated in that the police acts as theinvestigator and the prosecutor acts as apublic prosecutor.
However, these two authorities are still
mutually connected because:(1) The investigator shall inform thepublic prosecutor about thecommencement of an investigation.
(2) The investigator shall hand over thecase bundle to an public prosecutor.
(3) The public prosecutor shall grant
extension of remand to theinvestigator.
(4) The public prosecutor shall give
instruction to the investigator, andthe investigator shall complete thecase bundle according to the
instruction of the public prosecutor.
(5) I f t h e i n v e s t i g a t o r s t o p sinvestigation, he shall inform thepublic prosecutor; likewise if the
public prosecutor stops prosecution
he shall inform the investigator.
VI. PERFECTING THE NATIONAL
CRIMINAL PROCEDURE CODE
Lately the desire to refine the National
Criminal Procedure Code has come tosurface even though said code is only 15
years old.

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RESOURCE MATERIAL SERIES No. 53
It is evident that development and new
demands are rapidly appearing in
numbers, including new demands forjustice.
When the National Criminal Procedure
Code was formulated to replace the colonial
Dutch Criminal Procedure Code, itmanaged to accommodate the growing
demands presently existing so much so that
the National Criminal Procedure Code canbe regarded as seeped in national spirit.
H o w e v e r, d u e t o v e r y r a p i ddevelopments in every sector of life in thesociety, more new demands keep on
appearing, especially in respect of the
Criminal Procedure Code. So it isimperative that these demands areaccommodated in our legal system.
The new demands must be fitted in ourlegal system because at any point in timeand at any place, the law shall serve as avehicle towards achieving an assured
dream, order and justice for the society.
A concept to streamline the Criminal
Procedure Code without changing its
existing fundamental concept is meant tosolve the legal problems that arise from thedevelopment of the society; to improve
efficiency and effectiveness; and to prevent
excesses in law enforcement.
In other words, the conception of refining
the Criminal Procedure Code is to optimize
the Code itself.
The National Criminal Procedure Codewas promulgated on 31 December 1981. It
is a national legal product containing
improvements devised to protect humanrights in the process of the criminal law.
However, be that as it may, over a periodof time, it is felt that the Criminal
Procedure Code has its weaknesses andambiguities in terms of its legal
formulation, which have resulted indifferent interpretations and polemics
among law enforcers, practitioners andacademics in connection with several
provisions set out in the Criminal
Procedure Code.

78

More of these problems have cropped up
lately as more and more statements areissued through the mass media by legal
practitioners, academics and observers.
The statements mainly seek a change andrefinement of the Criminal Procedure Codeto suit the developments of the society,which are becoming more progressive andcomplex. The ambiguity in the formulationof the legal provisions has given rise todifferences in interpretations among thelaw enforcers, until the process of criminal
justice as a system does not function as
expected by the seekers of justice.
A. Recognition and Protection of
Basic Rights
A constitutional state has a special
feature, i.e., recognition and protection ofbasic rights which cannot be violated byanyone. One of the basic rights is equal
status for everyone under the law without
any discrimination against any groupbased on race, religion, sex, social culture,
economic standing and others.
In a constitutional state like theRepublic of Indonesia where the Pancasila(Philosophy of State) serves as a stateideology, state foundation and source of alllegal sources, the protection andenforcement of human rights must be
maintained so that individual interests andthe public interest can remain in goodbalance. In discharging its duty, the state
is obliged to preserve the public interest,
whether all its citizens or an individual.15
Having regard to the said matter, thefundamental recognition and protection ofhuman rights should be implemented in
the criminal procedure without any bias
between the protection of the basic rights
of a suspect and protecting the interests ofthe public, including the victim.

15 Prof. Senoadji Oemar, LLM, Seminar Indonesia

Negara Hukum/Seminar on Constitutional Stateof Indonesia, May 1966, Jakarta, Indonesia.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
B. Protection for the Suspect/
AccusedProtection for the suspects has beenadequately provided in the Criminal
Procedure Code, even though in practicethere are excesses taking place in its
implementation, such as torture to obtaina confession from the suspect,manipulative interrogation, detention
without basis, and others. The Criminal
Procedure Code has made provisions forthe rights of the suspect/accused to get
immediate questioning. However, inpractice there are possibilities of thesuspect/accused not responding toquestions, or just remaining silent,
although actually the answers to questionsof the suspect in court are reflective of his/her rights to defend him/herself. If thesuspect/accused remains silent (notanswering) during questioning, that is seen
to show that he/she purposely does notwant to make use of his/her rights.
To avoid torture or manipulation, it isalso necessary to provide in the Criminal
Procedure Code the right to remain silent(not answering). It is also important toinclude the legal consequences forremaining silent, e.g., it is provided thatthe silence of the suspect/accused isindicative of his/her admission to having
commited the alleged offences.
With such provisions, it is hoped thatthe torture of suspects/accused byinterrogators can be avoided.
Not using the right to answer must also
be provided so that said problem cannot
invalidate the investigation report.
C. Protection for the Victim
In the Criminal Procedure Code,protection for the victim comes in term ofclaiming compensation against theoffender and the right to reject thetermination of investigation/prosecution
through pre-trial review. The following
aspects of victims to seek justice have yet
to be provided:• Complaint/report not immediately
settled or acted upon by theinvestigator, and• Dissatisfied with the prosecution
carried out by the public prosecutor.
However, the right of appeal is still not
being accorded to the victim because said
right is against the system of the Criminal
Procedure Code as the public prosecutor issaid to represent the public interest which
includes the victim’s interest.
D. Legal Aid
Obtaining legal aid is the basic right ofthe suspect/accused so that he can defend
himself against the alleged charge he isfacing.
The Criminal Procedure Code has
expressly provided that legal aid services
can be accorded to a suspect/accused.
However, there is no provision in respectof a suspect/accused who does not want use
the services of legal aid (right to legal
advisor). The suspect/accused can notlatter adopt this as a ground in an apparent
attempt to nullify the process ofinvestigation and prosecution.
Under the circumstances, it has been
decided that if it is clear that the suspect/accused does not wish to use the right oflegal aid or legal advisor, then this cannot
be a ground for the judge to invalidate theprocess of investigation. It is thenimportant to provide for said legal aid
solely for the suspect/accused in theinterest of his/her defence counsel. As such,the legal advisor is not required to be by
the witness’s side during questioning, since
the witness does not require any for his/her defence, but he/she has the obligation
to give a true statement of he/she sees,hears and knows.

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RESOURCE MATERIAL SERIES No. 53
E. The Principle of a Free andResponsible Judiciary
1. Non-absolute Principle
The principle of a free judicature meansthat the power of the judiciary is free of
any interference from another state power
or free of any extraneous judicial influence.
However, said freedom is not absolute innature because the duty of the court or
judge is to enforce the law and justice.
A free judiciary upholds the
responsibility of creating legal certainties
based on truth and justice. If the judge
can not find a written law, he is required
to delve into the unwritten law in order toarrive at a legal decision as a prudent
person who is fully responsible towards the
Almighty God, himself, society, fellow
citizens and the nation.
2. Open Principle
This principle, apart from reflecting theprinciple of democracy, does reflect the
principle of freedom and impartiality tofacilitate the existence of social control. If
there is an exception by having a hearing
in camera for a certain case, there mustalso be a guarantee that the trial is still
being conducted honestly.
3. Principle of Giving Preference
to Justice and the Truth
In line with the principle of a free andresponsible judiciary, therefore, legal
consideration for the suspect/accused,victim and society must be given priority
over legal certainties because not all court
decisions containing legal certainties
produce justice.
F. Principle of Legality
The principle of legality means that noact shall be liable to penal action unless it
is based on the provisions of the law inforce. In the Criminal Procedure Code, thislegality principle is present in a situation
where the public prosecutor shall be

80“obliged” to submit the case bundle to court
after all requirements laid down by the law
have been fulfilled.
An exception to this legality principle(case not referred to court) is confined to
the Attorney General and it is limited
because of public interest. In other words,
this legality principle can only be exceptedby the principle of opportunity.
Based on the legality principle, there isan obligation that every case referred tothe court must have been asessed withenough evidence and that all therequirements have been fulfilled.
The principle behind referring caseswith enough evidence and which havefulfilled the requirements shows theacknowledgement of human rights in that
there is equal status for everyone under
the law.
For that reason, the provision to allow
the termination of investigation orprosecution must be prevented, regardlessof whether the case is minor or serious.
If there is an exception, there must be avery strict limitation known as thep r i n c i p l e o f o p p o r t u n i t y, i . e . , t h etermination of the investigation orprosecution of a case which has fulfilled therequirements of proof can only be effectedby the Attorney General on the ground oflegal interest.
The legality principle pertaining toremand must reflect the spirit of theconstitutional state and for that purposethe following shall be provided:• The accused upon being detained has
the right to be informed immediatelyof the alleged offence for which he ischarged, and• The accused shall have the right tocontact his family members and legal
advisor.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
G. The Criminal Procedure Code Is
Akin to the Principle ofExpeditious, Simple andAffordable Justice
1. The National Criminal Procedure
Code does not provide for any frame of time
regarding the bundle of investigation
papers of the civilian investigator to be in
the hand of the investigator of the police
for it to be handed to the public prosecutor.
So, in terms of principle of benefit, not only
does it prolong the bureaucratic tape but
runs counter to the principle of expeditious,
simple and affordable justice.
2. The Criminal Procedure Code does
specify the frame of time by which theinvestigator should complete his
investigation and what are the legal
sanctions if he does not complete or is latein completing his investigation.
3. The principle of expeditious, simple
and affordable justice must not only beapplied at the prosecution/hearing stage,
but also at the investigation stage. Thus,
if the Criminal Procedure Code is to be
streamlined in the future, this principle
must be concretely impelemented.
4. In practice, it is shown that thecriminal justice system does not cover theconcept of supervision and administration.
5. The accountability concept from theoutcome of investigation conducted by the
public prosecutor forms a part of theintegrated criminal justice system.16 In
implementing the principle of integrated
criminal justice system, the outcome ofinvestigation must be justified before an
open court.
The public prosecutor shall be required
to make justification because he is the one
who appears in court as a public prosecutor
and not the investigator.
16 Sujata Antonius, Master of Law, The Wisdom of

Law Application and Enforcement Programme inthe 7th Five-Year Development Plan, Law
Development Workshop Programme 1999-2004, 2026 November 1996, Jakarta, Indonesia.

The prosecutor shall be required to prove
the act allegedly committed by the accused.
Consequences arising thereof are as
follows:• The investigator shall abide by the
instruction of the public prosecutor.
• In cases where the investigator isunable to carry out the instruction of
the public prosecutor, then it isnecessary to introduce measures toextend the power for futherinvestigation by providing adequate
time not only to question witnesses
but also to question the suspect andto gather/seize case exhibits.
VII. INTERNATIONALGUIDELINES AND INDONESIAJUDICIAL DOCTRINE
As guidelines to all Indonesian
prosecutors in the course of their duties,
the Indonesian Prosecution espouses a
Judicial Doctrine known as Tri Krama
Adhyaksa (The Three Principles ofConduct);17 specifically, integrity, maturity
and wisdom.
• Integrity: Loyalty originating fromsense of sincerity towards the
Almighty God, one’s own self,family and all mankind.
• Maturity: Perfection in discharging
duties coupled with the mainelement of sense of
responsibility towards the
Almighty God, family andamong mankind.
• Wisdom: Wisdom in words and deeds
especially in discharging
one’s duties and power.
In upholding said Judicial Doctrine, allprosecutors in the course of their duties
must be aware that they form an
inseparable part of the other prosecutors.
17 Judiciary Doctrine, Annexure to the Decree of the

Attorney General of the Republic of Indonesia
Number: KEP-030/3/1988 dated 23 March 1988.

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RESOURCE MATERIAL SERIES No. 53
They are interrelated with one another,
representing one and the other, as well as
reminding one another of their conduct andactions.
Every member of the prosecution must
always upgrade his knowledge andcapabilities. In addition, every member ofthe prosecution must propagate his
initiative and cooperate with other law
enforcement agencies.
When coming into contact with membersof the public especially the seekers ofjustice, prosecutors must treat all men as
the creation of God who have the sameright and responsibility based on legal
values, religion, custom, and courtesy
honoured by the people of Indonesia.18
The Indonesian Judicial Doctrine iscompatible with the international
standards indicated in the United Nations
Guidelines on the Role of Prosecutors.19
Among the important details adopted
from the United Nations standard forprosecutors are the required qualifications
to become a prosecutor, the status and job
conditions of prosecutors, the freedom toexpress opinions and the right ofassociation, the role of the prosecutors in
the criminal process, prosecutor ’s
discretion, prosecutor’s relationship withother authorities and the process ofinvestigation against a prosecutor who
violates the rules.
(1) Those chosen to be prosecutors must
be honest and efficient by getting theproper training and requirements.
(2) A l l p r o s e c u t o r s m u s t a l w a y smaintain the honour and status of
their profession.

18 Prakoso Djoko, LLM, The Existence of Prosecutor

in the Midst of Society, Ghalia Indonesia, East
Jakarta, 1985.
19 Adopted by the Eight United Nations Congress on
the Prevention of Crime and the Treatment of
Offenders, 1990.

82(3) The state must ensure that allprosecutors are able to function
profesionally without unnecessary
intimidation, impediment andintervention.
(4) All prosecutors have the right andfreedom to voice out their opinions
and put forth their unified confidence.
(5) Prosecutors are at liberty to form andjoin professional assemblies or otherorganizations which champion theirinterests, upgrade the profesional
quality and protect their status.
(6) All prosecutors must play active rolesin the criminal process by carrying out
prosecution and in conducting
investigation. They must also ensure
the legality of said investigation, oversee
the execution of the court’s decision andcarry out other functions expected of aprotector of public interest.
(7) All prosecutors must perform theirduties fairly, consistently and
expeditiously and defend basic
human rights.
(8) In performing their duties, allprosecutors cannot be partial and must
avoid political, social, religious, racialand other kinds of discriminations.
(9) In protecting the public interest, theymust be objective and give due regard
to the suspects and all the victims.
(10) They must not commence andproceed with prosecution if there isno basis to frame the charge.
(11) All prosecutors are duly requested to
be aware of matters concerning theprosecution of their fellow colleagues,
corruptions and power abuse.
(12) In setting aside cases, prosecutor
must fully appreciate the rights of thesuspects and also the victims.
(13) Any complaints against prosecutors
alleging deviations in profesional
standard must be dealt withexpeditiously and fairly. The
decisions must be subject toindependent review.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

THE CHARACTERISTICS OF THE KOREAN PROSECUTIONSYSTEM AND THE PROSECUTOR’S DIRECT INVESTIGATION
Lee, Jung-Soo*
I. PROLOGUE
Since the dawn of history, every civilizedcountry has developed its own investigation
system, exercised investigatory power,
cracked down on criminals and indicatedthem. In other words, every country has
been imposing upon criminals appropriate
sanctions commensurate with their crime.
Every civilized country has invested its
legal system derived from its national
consensus. Under the system, each country
has organized investigative and judicial
authorities and enacted criminal procedurelaws which govern the investigation
process. Through such a system, eachcountry has maintained national order andsecured the human and welfare rights of
its citizens.
Today, crime is being committed in moresophisticated methods and in a moreorganized form. In addition, new types ofcrime are continuously occurring. To
effectively deal with such situations,investigative organizations are also getting
systematized and scientific in terms oforganization and investigation methods.
Especially in the Republic of Korea,
prosecutors play a main role in theinvestigation and judicial process.
Prosecutors initiate investigation or direct
the police regarding a specific crime.
Prosecutors are the only authority indeciding whether to indict a specificsuspect, participate in trial and executejudgements made by judges.
In connection with the topic of thistraining course, I would like to focus mypresentation on special characteristics of* Deputy Chief of Suwon District, Public Prosecutor’s
Office, Republic of Korea.

the Korean prosecution system, theprosecutor’s control of the police, and theprosecutor ’s discretionary power in
deciding whether to indict a specific person,
thereby explaining how investigation isconducted in Korea and human rights areprotected.
Finally, I will try to help you understandthe direct investigation activities andauthorities of prosecutors by briefly
explaining the corruption case of Roh Tae
Woo, the former Korean president, and theillegal loans in the Hanbo Conglomeratecase which caught the attention of theworld.
II. CHARACTERISTICS OF THE
KOREAN PROSECUTION SYSTEM
A. Two Faces of the Prosecutors’
Organization
The authority of prosecutors is basicallysimilar to the executive power because theultimate purpose of the prosecutors’organization is the imposition of
appropriate punishment upon criminals.
On the other hand, it also has a judicial
character since indictment andparticipation in the trial process has muchto do with judgments. Therefore, these two
are the most representative features of the
Korea prosecution system.
Under the Korean laws, each prosecutor
has independent authority free from anypressure in exercising his/her power, forexample, in the investigation of crime,
participation in the trial process and theexecution of judgments. In this respect,prosecutors have the same independence
in performing their works as judges have.
On the other hand, to enable prosecutors
to effectively achieve their purpose (which
83

RESOURCE MATERIAL SERIES No. 53
is to maintain national order and peace),
prosecutors form a pyramid organization,at the top of which is the ProsecutorGeneral. In this respect, the Koreanprosecution system has an executive
character.
The Prosecutors’ Office is under the
Ministry of Justice which is one of theexecutive departments.
B. Leader of Criminal Investigation
The most remarkable characteristic of
the Korean prosecution system is thatprosecutors play a leading role in thecriminal investigation. Prosecutors not
only conduct direct investigation, but also
give instructions to the police in connection
with a criminal investigation. Prosecutors
are legally entitled to control and supervise
the police regarding criminal
investigations. Accordingly, police obey
prosecutors’ instructions as far as criminal
investigations are concerned. Thus,
prosecutors are the supreme and ultimate
authority in criminal investigation, and thepolice serve as assistants to theprosecutors. Our system differs from thatof the United States of America in that
American prosecutors have no authority toinvestigate crimes. It also differs from theJapanese prosecution system in thatprosecutors and police in Japan are in acooperative relationship, whereas Koreanprosecutors and police are in an orderobeyance relationship. In this respect, theKorean prosecution system is similar tothat of France or Germany.
C. Discretionary Power ofIndictment
Another feature of the Koreanprosecution system is that prosecutors
have the discretionary power to decide
whether or not to prosecute a suspect.
Prosecutors can decide not to prosecute asuspect even if there is sufficient evidence
for prosecution.

84

To my knowledge, prosecutors in mostcountries should, in principle, prosecute asuspect if there is enough evidence toprosecute that person, and only under
exceptional circumstance can prosecutors
decide not to prosecute such person.
However, under Korean law, prosecutors
have the general and broad authority not
to prosecute a suspect. This discretionary
power, if exercised well and fairly, helps
prosecutors take into account criminal
policy factors regarding a specific suspect
at the pre-indictment stage. On the other
hand, it is also possible that prosecutors
might abuse such power. Thus, I believethat such power should be exercisedcarefully and appropriately. In addition,
there should be certain kinds of control
systems in order to prevent abuse of thatpower.
III. AUTHORITY OF KOREAN
PUBLIC PROSECUTORS
A. Criminal Investigation
Korean prosecutors have the authority
and duty to investigate all crimes.
Investigation authority is an inevitablepremise of indictment and the starting
point in imposing punishment uponcriminals. Under Korean law, theauthority to investigate crimes is vested int h e p r o s e c u t o r s . C o n s e q u e n t l y,prosecutors, as the leaders or main playersof criminal investigation, control and direct
the police who are the assistants to theprosecutors.
B. Indictment and Maintenance ofIndictment
As the only prosecuting authority,
Korean prosecutors have the power todecide whether or not to prosecute asuspect.
In the case that a prosecutor chooses toindict a person, the prosecutor has the duty
to participate in the trial and maintain
indictment until a final court judgement

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
has been rendered. In an exceptional case,the prosecutor can remand the indictment.
Under the Korean Criminal Procedure
Law, indictment by a private person is notallowed and only the government can indict
a suspect. Of the many departments of ourgovernment, the prosecutors’ officemonopolizes the authority of prosecution.
In addition, as I have already mentioned,
prosecutors have the discretionary power
to suspend prosecution even if there issufficient evidence to maintain prosecution.
Prosecutors suspend prosecution when
they think the benefit of non-prosecution
is greater than the cost of prosecution. It
enables prosecutors to take into accountcriminal policy factors when deciding
whether to prosecute a suspect.
C. The Right to Direct andSupervise Judicial Police
Officers
Korean prosecutors have the legal rightto direct and supervise judicial police
officers as far as criminal investigations areconcerned. Under Korean law, prosecutors
are the czars of criminal investigations.
Consequently, judicial police officers are
obliged to obey the prosecutors’ orders
which are issued based on the prosecutors’
legal authority.
Generally speaking, judicial police
officers serve as members of the executive.
However, they are all under the control ofthe prosecutors when they perform judicial
police work in connection with criminal
investigations. This system is based on the
belief that due process and individual
rights will be best protected by enablingprosecutors to play a leading role incriminal investigation since they are legal
experts and are guaranteed independence
and a high status. It is also the best way
to effectively indict a suspect and tomaintain such an indictment.

D. The Right to Direct andSupervise the Execution of
Judgments
In Korea, prosecutors direct andsupervise the execution of all criminal
judgments, e.g., direction and supervisionof the execution of arrest warrants, searchor seizure warrants and final criminal
judgments. This was designed based upon
the belief that the appropriateness of
warrant execution and the protection ofindividual rights in connection with suchexecution could best be secured by
entrusting those duties to the prosecutors
who represent the public interest.
E. Authority and Duties as
Representatives of the Public
Interest
Korean prosecutors, as representativesof the public interest, directly participate
or direct public officials to participate incivil suits in which the government is aparty or in which the government has aninterest. In these civil proceedings, theKorean Minister of Justice represents ourgovernment. Even though an executive
department or its subsidiaries becomes adefendant in an administrative suit, theprosecutors direct public officials of thedepartment or participates in the trial
because the prosecutors are legal experts
and representatives of the public interest.
IV. STATUS OF PROSECUTORS
A. Nature of Prosecutor’s Office
1. Independent Office
The public prosecutor’s office is under
the Ministry of Justice, which is a
department of the executive. In thisrespect, the nature of the publicprosecutor’s office is different from that ofjudges, who belong to the judiciary. The
prosecutor ’s office is, however, an
independent organization which makes its
own decisions. In other words, theprosecutor’s office is not an assistant to the85

RESOURCE MATERIAL SERIES No. 53
Prosecutor-General or the chief prosecutorof the district public prosecutor’s office.
2. Status as Quasi-Judges
The duties which prosecutors exercise
are basically executive ones. However,these duties should be exercised with thesame fairness and strictness as requiredin exercising judicial power. In otherwords, the duties of prosecutors, consistingof criminal investigation, indictment,
maintenance of indictments, and theexecution of judgments, etc., has much to
do with judicial responsibilities, andtherefore need to be exercised very
carefully to achieve justice. Accordingly,
prosecutors not only have the status ofexecutive officers but also that of quasijudges.
B. Protection of Status of Public
Prosecutors
To ensure the fair execution of theprosecutors’ duties and prevent pressure
from other persons, prosecutors are given
the same protection as judges. Specifically,
our laws provide that the term of the officeof the Prosecutor-General is two years andthat the prosecutor shall not be subjected
to dismissal, suspension from office orr e d u c t i o n o f s a l a r y, e x c e p t b y
impeachment, judgment of imprisonments
and disciplinary action. The number ofprosecutors, the salary and disciplinary
proceedings are also stipulated by law. The
purpose of specifying such matters by law
is to protect securely the status ofprosecutors, and thereby enableprosecutors to perform their duties freefrom any unjust interference.
C. Independent Status of Public
Prosecutors
Under Korean law, the aforesaid duties
of prosecutors are vested in each individual
prosecutor as an independent office.
Therefore, it is not true that all theprosecutorial authority belongs to the chief

86

prosecutor. The Prosecutors’ Office iscomposed of many individual prosecutors
and it coordinates the prosecutors’ work.
However, it does not itself exercise
prosecutorial authority. Although the chiefprosecutor of a specific prosecutors’ officedirects and supervises each prosecutor
attached to it, the exerciser of prosecutorial
authority is each individual prosecutor.
Consequently, it is for the individual
prosecutor to decide policy and exercise theprosecutorial authority.
D. Appointment, Rank andAssignment of Public Prosecutors
In Korea, the qualifications to become
public prosecutor are identical to that of ajudge and an attorney. Anyone who wants
to be appointed as a public prosecutor must
pass the Judicial Examination held by the
Administrative Department and thencomplete the two-year training course at
the Judicial Research and Training
Institute, which is supervised by theSupreme Court.
The number of examinees who
successfully passed the Examination in
1995 was 300. It was 500 in 1996 and willbe 600 in 1997. As you can guess, theKorean government is increasing thenumber each year. Comprehensively
taking into account the budget and workload, we draw up a plan regarding thenumber of prosecutors to be newly
appointed each year. In fact, we appointaround eighty to ninety new prosecutors
each year and assign them to each district
public prosecutors’ office. The total numberof public prosecutors in Korea was 1,072
as of September 1, 1997.
The appointment and assignment of allprosecutors are made by the President
upon the recommendation of the Ministryof Justice.
There are four ranks of publicprosecutors: Prosecutor-General, Senior
Chief Public Prosecutor, Chief Public
Prosecutor, and Public Prosecutor.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Requirements for appointment andassignment to each rank are different.

on the Minister’s right to direct or supervise
prosecutors.

E. Principle of Identity of Public
Prosecutors
The Principle of Identity of Public
Prosecutors means that all prosecutors,
each of whom is an independent office, forma uniform and hierarchical organization,at the top of which is the ProsecutorGeneral. This principle was designed tohave all prosecutors perform their work as
one body and cooperate with each other.
Accordingly, even if a specific prosecutor’s
work is done by another prosecutor, it does
not make a difference in terms of legal
effect.

V. ORGANIZATION OF KOREAN
PUBLIC PROSECUTOR’S OFFICE

F. Right of the Ministry of Justice toDirect and Supervise Public
Prosecutors
Public prosecutors are executive officials
belonging to the Ministry of Justice.
Although the activities of the publicprosecutors are judicial, the Minister ofJustice, as the supreme supervisor ofprosecutors, directs and supervises
prosecutors in regard to the generalprosecutorial work. However, the Ministercan only direct and supervise theProsecutor General with respect to specificcases. A specific case means one dealt withby a specific prosecutor. With respect to a
specific case, only the Prosecutor-Generalcan direct and supervise a prosecutor interms of investigation, indictment,
maintenance of indictment and executionof final judgments.
Since prosecutors are executive officers
belonging to the Ministry of Justice and theMinister is the one who bears the politicalresponsibility, prosecutors are generally
under the supervision of the Minister. On
the other hand, prosecutors should be freefrom any unjust pressure from politicalparties and other executive departments.
This is the reason why we place restrictions

A. Kind and Name of Public
Prosecutors’ Office
The public prosecutor’s office consists of
the Supreme Public Prosecutor’s Office,five High Public Prosecutor ’s Offices,
twelve District Public Prosecutor’s Offices
and forty branches as of January 1997.
The Supreme Public Prosecutor’s Office
is in Seoul, and it corresponds to theSupreme Court. The High Public
Prosecutor’s Offices are in five major cities,
corresponding to the High Courts. The
District Public Prosecutor’s Offices are in
forty cities and counties, and correspondto the District Courts or Family Courts(Figure 1).
B. Structure of the Prosecutor’s
OfficeIn each prosecutor’s office, there is one
chief prosecutor who generally controls thework of that office. Right below the chiefprosecutor is the deputy chief prosecutor
who assists the chief prosecutor or executes
some of the chief prosecutor ’s work
vicariously. Below the deputy chiefprosecutor are several directors who are
the chiefs of several divisions. All work of
the office is divided into several parts andassigned to each division depending upon
the character or nature of the work.
Several prosecutors are assigned to every
division.
In addition, there is support staff in eachof the prosecutor ’s office, who assist
prosecutors in investigation, in drawing up
or keeping documents, trial, etc. The staff
belong to each of the above divisions andthe general affairs bureau. They
sometimes even investigate cases based on
the prosecutor ’s order or draw up
documents.

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RESOURCE MATERIAL SERIES No. 53
VI. DIRECT INVESTIGATION BY
PROSECUTORS
A. Necessity of Direct Investigation
When a crime is committed, the police
officers that belong to the National Police
Agency usually conduct the criminal
investigation. However, public prosecutors
themselves conduct criminal investigationsin the case of special offenses such as
corruption by public officials, tax evasion,
offenses related to huge economic incidents,
and intellectually and legally complicatedoffenses. To increase the efficiency of
criminal investigation for such cases, theSupreme Public Prosecutor ’s Officeestablished the Central Investigation
Department and the District Public
Prosecutor’s Office established the Special
Investigation Department.
B. Supreme Public Prosecutor’s
Office and Central Investigation
Department
1. Organization
The Supreme Public Prosecutor’s Office(hereinafter called SPPO) consists of theGeneral Affairs Department, the Central
Investigation Department (hereinafter
called CID), the Criminal Department, theViolent Crime Department, the Public
Security Department, the Inspection
Department, the Criminal Trial and Civil
Litigation Department, and theAdministration Bureau. The Chief Public
Prosecutor is in charge of each department,
except the Administration Bureau, of which
is headed by an administrative official.
The Director of the CID, the Chief Public
Prosecutor, has under his control five seniorpublic prosecutors who are the Director of
the Investigation Planning Office, theCriminal Intelligence Management Officer,
and the heads of Divisions I, II and III. The
Director of the Investigation Planning
Office is a veteran senior public prosecutor
and has the same rank as the Deputy Chief
Public Prosecutor in the District Public

88

Prosecutor ’s Office. Senior publicprosecutors are usually in charge of the
Criminal Intelligence Management Officeor Divisions I, II, and III. As of September
1, 1997, seventy officers were working in
the CID.
2. Duties
The main duty of Divisions I, II, and III
is to investigate special criminal cases,
whereas the Criminal Intelligence
Management Office collects and manages
criminal information. In relation to theadministrative service, the Investigation
Planning Office makes plans ofinvestigative operations, controls andsupervises them, and cooperates with otherinstitutions dealing with criminal
investigation. Divisions I, II and III are
under the control of the Investigation
Planning Office. The CID mainly
investigates corruption by high-ranking
government officers such as ministers of
the government, members of the National
Assembly, presidents of banks, and otherhigh-ranking officers in the central
government. This Department also
investigates criminal cases connected tohuge economic incidents—e.g., tax evasion
by a conglomerate.
C. Special Investigation Departmentin the District Public Prosecutor’s
Office1. Organization
Special Investigation Departments havebeen established in eight District Public
Prosecutor’s Offices and consist of a seniorpublic prosecutor, three or four publicprosecutors and special agents. As an
exception, there are three senior publicprosecutors, eighteen public prosecutors,
and 100 special agents in the Seoul District
Public Prosecutor’s Office. The special
agents are public prosecutor ’s officepersonnel, but they are not police
personnel.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
2. Duties
These departments investigate special
criminal cases including corruption by
public officials and tax evasion. These
departments also collect data andinformation related to special crimes.
D. Investigation Procedure
In criminal cases, the police and thirtyfour special investigative agencies initiate
the basic investigation. However, theCriminal Procedure Code vests the powerof initiation and the conclusion of criminal
investigation solely in the publicprosecutors. Therefore, the police andspecial investigative agencies serve only as
assistants to the public prosecutors andshould conduct their investigations inaccordance with the general standard and/or special directions issued by the publicprosecutors and transfer all cases
mandatorily to the public prosecutors forthe conclusion of investigations.
Public prosecutors themselves directly
investigate criminal cases related tonationally recognized high-profile incidents
or intelligence cases.
1. Criminal Information
Collection
One of the most important operations incriminal investigation is the collection andmanagement of criminal information. As
the society rapidly changes, criminal
methods and types become manifold,organized and sophisticatedly intelligent.
Under such circumstances, the necessityof a systematic management and collectionof criminal information was raised by the
public prosecutor’s offices. Accordingly, theCID in the SPPO established the CriminalIntelligence Management Division on
March 1, 1995. Since then, twelve District
Public Prosecutor ’s Offices and forty
branches established a Division. Division
officials collect criminal information
through diverse sources—especiallythrough minute books of national and local

assemblies, articles of journals andnewspapers, and rumors in the stock
markets.
2. Enforcement GroupIn the Special Investigation Departmentof the Seoul District Public Prosecutor’s
Office, there are six enforcement groups
consisting of two to three public prosecutors
and about 10 special agents. They
investigate criminal cases on the basis of
their speciality. The head of each
enforcement group is managed by a publicprosecutor of varied experiences. Eachgroup has its own specialized field such as
the financial and economic field, theconstruction and scientific technology field,
and the corruption field. However, theenforcement groups are not restricted totheir corresponding specialized field. Eachgroup can investigate other fields, if
necessary.
Other District Public Prosecutor ’s
Offices are planning to establish such an
enforcement group.
3. Money Laundering and Its
Trace
The most important factor in theinvestigation of corruption by public
officials is tracing the source of the bribethat public officials received. Because thebribery of public officials takes several
stages and because it is clandestine andintelligent, it becomes more and moredifficult to trace the source.
In regards to money laundering, theFinancial Action Task Force on Money
Laundering (FATF) was established at theG7 Summit in 1987 to provide policies
coping with money laundering. Twentysix countries of the OECD are affiliatedwith the FATF. Korea is now consideringjoining it.
Korea does not have a “Money
Laundering Control Act”, which
criminalizes money laundering itself.
However, Korea enacted “The Special Act

89

RESOURCE MATERIAL SERIES No. 53
against Illicit Drug Trafficking”, whichcontains punishment provisions for money
laundering related to drug crimes.
Consequently, only money laundering
related to drug crimes is criminalized andcan be punished in Korea. Even though it
is necessary to crimiminalize money
laundering itself, it is difficult to do so
because of the protection of confidentiality
in financial transactions.
To trace illegal fund, the SPPO organized
an investigation team consisting solely of
officers of the Office. If necessary, the Officecan request the dispatch of officers fromthe Bank Inspection Board and the
National Tax Administration. The SPPO
published the book, “The Reality of
Financial Transaction and Its Trace,”
which speaks about money laundering andthe investigations surrounding it.
4. Places of Investigation
In the past, public prosecutors usedhotels or secret places to maintainconfidentiality in the investigation ofcorruption by high-ranking government
officials and tax evasion by a conglomerate.
In principle, public prosecutors investigate
such cases only inside the building of the
public prosecutor’s offices now. The SPPO
and the Seoul District Office have special
investigation rooms which only prosecutors
in charge are admitted. Even other fellow
prosecutors are restricted from entering.
F. Prosecutor’s Investigation and
the Mass Media
Because the effect of the prosecutor’s
investigation on the society is enormous,
reporters always pay attention toprosecutors who are in charge of important
cases in order to obtain important sourcesof information. Reporters also try to catch
people who come to the Office in relation
to the investigation and thereby attempt
to cover all stories about the investigation.
However, the Office does not provide them90

with any information about the people
involved in order to protect their rights andthe secrecy of the investigation before thetrial. According to Korean Criminal Law,prosecutors, police officers and otherpersonnel connected to the investigation
can be punished when they release
information before the trial. Sometimes,
reporters discover the investigation
information through the copy of arrest or
search warrants obtained in court. This isbecause they have easy access to thewarrant in court.
From the viewpoint of the mass media,
the people have a right to know and thus
the mass media, emphasizing freedom of
the press, try to report the facts. The
problem is that media agencies competewith each other to report unproven or
unconfirmed information and rumors.
Such reports themselves may interrupt theinvestigation and violate civil rights. Thus,
prosecutors ask for the correction of news
based on unproven information by the
responsible media agency and prohibit thereporters from entering the Public
Prosecutor’s Office. Sometimes, the pressclub itself prohibits the reporters
responsible for the news from gaining
access to the press club room of the Office.
VII. THE CORRUPTION CASE OFFORMER PRESIDENT ROH
TAE WOO
Since October 1995, the CID
investigated the charges of bribery andgraft cases of former President Roh Tae
Woo, along with the then Defense Minister,presidents of banks, and the other highranking government officials. I introduce
now the bribery and graft cases of former
President Roh.
A. Background of Investigation
After the Real Name Financial
Transaction Regulation came into effect in107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
August 12, 1993,1 there was a rumor of ahuge slush fund circulating in the stock
markets and the private loan markets. In
August 1995, the Government
Management Minister Seo Seok-jai at thattime reportedly told reporters under thecondition of being “off the record” that close
aides of one of the two former presidents
had approached the ruling camp and asked
whether the fund, amounting to 400 billion
won (US$500 million dollars), could be
converted to the former president’s bankaccounts using fake and borrowed names.
This rumor was reported by the press.
Along with the increase in the national
interest and suspicion of the slush fund,Congressman Park Kay-dong of the
opposition Democratic Party announced at
the National Assembly’s plenary session in
October 19, 1995 that the former President
Roh had several bank accounts usingborrowed names. Congressman Park
presented bank account balances asevidence of the slush fund. Bank clerks
confirmed the evidence on the same day.
Accordingly, the prosecutorial authorities
began to investigate the case, with a strong
will, that although it was a historicalbribery and graft case of a former president
which had never happened in Korea before,
prosecutorial authorities would convict him
and, if found guilty, impose a severe
sentence on the purpose of the
improvement of justice in Korea, and inturn resolve the suspicion that people haveabout public officials.
B. Investigation Process
Holding the search warrant for Roh’sbank accounts that Congressman Park
revealed, the CID traced the slush fund andsummoned the then Chief of Presidential
Security Service. The CID confirmed that
1 Under the presidential decree on the mandatory
use of real names in all financial transactions, nofund can be opened using either a false or borrowed
name.

Roh had several bank accounts of the slush
fund. The amount of total transactions inRoh’s accounts was approximately 74
billion won (US$100 million) and thebalance was 36.5 billion won (US$45
million dollars). These accounts had been
managed by a presidential resident
financial officer. It was revealed in theprocess of the investigation that thepresidential financial officer followed theorder of the Chief of the Presidential
Security Service and opened several bankaccounts using borrowed names in several
banks. After this investigation, Rohannounced in his apology speech that forfive years during his presidency, hereceived about 500 billion won (about
US$630 million) from business owners andthat the remainder of the accounts was 170
billion won (US$212 million).
Roh was summoned on November 1,
1995 and became the first former president
in Korean history to be arrested anddetained in prison on November 16th forthe violation of the special act on additional
punishment for bribery. The next day, theformer Chief of the Presidential Security
Service was arrested and detained too.
Along with the arrest, more than sixty
people related to the case of false namebank accounts, most of whom were highranking government officers and bankers,
were summoned and investigated. In
relation to the bribery, about 200
businessmen, including thirty-nine of thenation’s major business owners, werebrought in for interrogation. In relation to
obtaining illegal real estate, about forty
people including Roh’s relatives bymarriage and his close aids were
investigated. In relation to theinvestigation of money laundering and theillegal purchase of real estate, 500 bankaccounts were traced and investigated.
For the investigation of this huge slush
fund case, the prosecutorial authority
mobilize ninety-two officers, including theInvestigation Planning Officer, public

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RESOURCE MATERIAL SERIES No. 53
prosecutors of Divisions II and III in the
CID, public prosecutors of the Seoul
District Prosecutor’s Office, officers fromthe Office of National Tax Administration,and officers from the Bank Supervision
Office.
C. Indictment
Indictments were determined by thesituation in which big business owners
gave bribes in return for government
favors, the size of the bribes, the criminal
histories of the big business owners, andthe effect of the indictment on the domestic
and international economy. On December
5, 1995, the investigation was terminatedwith the indictment of Roh and his aides
with confinement, twelve fund raisers andbusiness owners without confinement, andthree bankers with a summary order. In
the meantime, the request of the Securance
Order for Collection of Equivalent Value on
all of Roh’s properties was accepted by the
court, based on the Special Case Act ofConfiscation for Crime of Public Officials.
All of Roh’s property was preliminarily
seized before the indictment.
D. Result of Trial
In the Seoul District Court, the court oforiginal jurisdiction, Roh was sentenced totwenty-two years and six months in prison
and was fined 283.8 billion won (about
US$354.2 million) on August 26, 1996.
According to the Special Act for Speedy
Litigation, the sentence of the first trial
should be passed within six months fromthe date of indictment, and that of the trialof appeal and the last trial should be passed
within four months from the date ofreceiving the trial record.
In the High Court, the court of appellate
jurisdiction, he was sentenced to seventeen
years in prison and fined 262.89 billion won(US$328.6 million). The Supreme Court

92

rendered a judgment dismissing Roh’s
appeal on April 17, 1997. Business owners
who gave bribes to Roh were sentenced to
imprisonment and suspension of executionof sentence in the appellate court.
VIII. CRIMINAL INVESTIGATIONORGANIZATIONS OF KOREA
A. Organizations
Criminal investigation organizations of
Korea are divided into two categories. One
is prosecutors and the other is judicial
police officers. Judicial police officers areagain divided into two groups, one of whichis general judicial police officers and theother is special judicial police officers.
1. Prosecutors
Prosecutors are an investigation
organization as well as an indictment
organization. The legal status of aprosecutor as an indictment and that of aprosecutor as an investigation organization
are different from each other.
In Korea, prosecutors play a leading rolein criminal investigation and therefore
they are the czars of investigation in reality
as well as in name.
2. Judicial Police Officers
As I have already mentioned, judicial
police officers are composed of general ones
and special ones. Whereas the former caninvestigate any kind of crime, the latter’sauthority to investigate is limited in termsof subject matter or territory. In otherwords, special judicial police officers arebasically members of the executive whose
original work has little to do with criminal
investigation. In order to take advantageof their expertise on a specific field, they
are entitled to investigate specific crimes.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
B. Relationship between
Investigation Organizations
1. Relationship between
Prosecutors
In principle, a prosecutor is obliged toinvestigate crimes over which he/she has
territorial jurisdiction. However, a
prosecutor can investigate outside of his/
her territorial jurisdiction by requesting
another prosecutor who has territorial
jurisdiction over a specific crime.
Sometimes, prosecutors go directly to aplace outside of his/her territorial
jurisdiction and investigate crimes incooperation with the prosecutors assigned
to that area.
2. Relationship between
Prosecutors and Judicial Police
Officers
Under the Korean Criminal Procedure
Law, the relationship between theprosecutor and the judicial police officer is
not one of cooperation, but one of orderobeyance.
Accordingly, the prosecutor directs andsupervises the judicial police officers inconnection with criminal investigation andthe police should obey the prosecutor’s
official order.
These duties of the prosecutor are
essential in realizing the spirit of the ruleof law which requires the protection ofhuman rights and due process in theinvestigation of crimes.
Judicial police officers should obey any
official order issued by the prosecutors.
(Article 53 of the Korean Public
Prosecutors’ Office Act.) Moreover, thejudicial police officers, as assistants of theprosecutors, can investigate crimes only
under the control of prosecutors.
In case a judicial police officer does notcomply with a prosecutor ’s order orcommits any unjust act in connection withperforming his duty, that prosecutor can,through his chief prosecutor, request theofficer to stop the investigation or request

his superior officer to replace him. If
necessary, prosecutors can request thepolice or other executive departments todispatch some of their officers to theprosecutor’s office. In order to ensure thatprosecutors effectively control judicial
police officers, Korean laws provide thefollowing:a) Prosecutors’ authority toinspect the place of arrest or
detention
To deter unlawful arrest or detention,
the chief prosecutor of the district publicprosecutors’ office or its branch offices
dispatches prosecutors once a month to theplace of the investigation organizations
where a suspect is being arrested ordetained. The inspecting prosecutor
examines relevant documents andquestions the arrestee or detainee. If there
is reasonable ground to believe that any
suspect has been arrested or detained inviolation of due process, the prosecutor
should release the suspect or order the
judicial police officer to refer the case to
the prosecutors’ office. (Article 198-2 of the
Korean Criminal Law.) The purpose of thissystem is to protect individual rights fromunlawful infringement. This provisionemphasizes the prosecutor’s role as an
advocate of human rights.
b) Right to request to the judge
to issue an arrest warrant
Under Korean law, the judicial police
officer is not entitled to directly request to
the judge to issue an arrest warrant. A
judicial police officer should apply for anarrest warrant with the prosecutor. If suchan application is made by a judicial police
officer, the prosecutor examines theapplication documents and decides
whether to request to the judge to issue thearrest warrant. The same is true of awarrant for search, seizure or inspection.

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RESOURCE MATERIAL SERIES No. 53c) Right to approve urgent
arrest made by a judicial
police officer
Prosecutors or judicial police officers
may arrest a suspect without an arrest
warrant in cases where there is reasonableground to believe that (1) the suspect has
committed a crime punishable by death, life
imprisonment or imprisonment for morethan three years; (2) the suspect may
destroy evidence or has escaped or may
escape; and (3) it is practically impossible
to obtain an arrest warrant from a district
court judge because of urgency. Of course,
prosecutors or judicial police officers should
state the above reasons of urgency to thesuspect before arresting him/her. When ajudicial police officer urgently arrests asuspect, he should obtain the approval of aprosecutor immediately after the arrest. In
reality, when a judicial police officer has
made an urgent arrest, he immediatelytransmits the application documents ofapproval of arrest to the prosecutor byfacsimile, Through this system, prosecutors
can prevent judicial police officers fromillegally arresting a person, thereby
protecting human rights. This provisionalso serves as a tool which securesprosecutors’ right to control judicial police
officers.
d) Right to direct judicial police
officers in connection withdisposition of seized articles
When judicial police officers (1) sell the
seized article and keep the proceeds incustody; (2) return the seized article to its
owner; or (3) temporarily return it to its
owner, they must obtain prior approval of
the prosecutor.
e) Judicial police officer’s duty
to report to the prosecutor
When crimes happen which are related
to national security or are socially
important such as insurrection, foreign
aggression, crimes related to explosives,

94

murder, etc., judicial police officers should
immediately report to the chief prosecutorof the district having jurisdiction over theinvestigation. Moreover, judicial police
officers are also obliged to report to theprosecutor on the occurrence of riots andimportant affairs or movements of politicalparties or social groups. Based on suchreports, prosecutors take appropriate
measures and direct judicial police officers.
3. Relationship between Judicial
Police Officersa) Relationship between
judicial police officers andjudicial police staff
Judicial police officers investigate crimes
under the control of the prosecutors, andthe judicial police staff investigates crimes
under the direction of the prosecutors andjudicial police officers. In other words,
judicial police officers may investigate intheir own name and authority, whereas
judicial police staff only assists in theinvestigation of the prosecutors or the
judicial police officers. In practice,
however, judicial police staff draws up
various kinds of investigation documents
as proxies for judicial police officers.
b) Relationship between
judicial police officers
Judicial police officers who are the samein rank should perform their duty incooperation with each other.
IX. INDICTMENT
In Korea, prosecutors have the soleauthority to decide whether to prosecute asuspect, except in cases of the quasiindictment process by the court and petty
crime indictment made by the police. Thisis called the principle of Indictment
Monopolization.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
A. Presentation of Indictment
To prosecute a suspect, the prosecutor
should present an indictment to the court.
Prosecution can not be made verbally or
by way of wire.
In practice, the prosecutor draws up theindictment and submits it to the court. In
case of prosecution with detention, arrest
warrant (or urgent arrest document, arrest
document against a flagrant offender), thedetention warrant and a certificate ofdetention are attached to the indictment.
B. Principle of Presentation ofIndictment Only
In the indictment, neither documents
nor things which can mislead the judge canbe attached. Accordingly, prosecutors do
not present documents or things such ascomplaints, inspection documents orexpert’s opinion at the time of prosecution.
X. DISCRETIONARY POWER OFPROSECUTORS (PRINCIPLE OFCONVENIENT PROSECUTION)
A. Introduction
Under Korean law, prosecutors have thediscretionary power to suspend prosecution
even if there is sufficient evidence to convict
a suspect. This is called the Principle ofDiscretionary Prosecution. It is a concept
contrary to the Principle of Compulsory
Prosecution. Namely the Principle ofCompulsory Prosecution means that theprosecutor should prosecute a suspectwhen there is sufficient evidence to convictthat person in the prosecutor’s opinion andthe other requirements for prosecution aresatisfied.
The purpose of the Principle ofDiscretionary Prosecution is to enable theprosecutor to take into consideration
criminal policy in deciding whether toprosecutor a specific suspect. However,some lawyers are critical of this principle
in that: (1) such principle can not effectively
control prosecutors’ arbitrary decision, and(2) it is possible that the exercise of theprosecution authority might be influenced
by political pressure.
B. Discretionary Power and Its
Criteria
Section 1 of Article 51 of the Korean
Criminal Procedure Law provides that theprosecutor may decide to suspend
prosecution considering the factors
enumerated in Article 51 of the Korean
Criminal Law. The prosecutor may decide
not to prosecute a suspect taking into
account the suspect’s age, character,p a t t e r n o f b e h a v i o r, i n t e l l i g e n c e ,circumstance, relationship to the victim,
motive and method for commiting thecrime, results and circumstances after thecrime. However, the factors enumerated
in Article 51 of the Criminal Law are notwords of limitation, and therefore
prosecutors may exercise theirdiscretionary power considering factors
other than those enumerated in the article.
C. Reasons for Suspension ofProsecution
Although it is up to the prosecutor todecide whether to suspend a prosecution,
it is very difficult to definitely state thereasons for non-prosecution because theprosecutor must think about various
factors relevant to a specific case in making
the decision. For example, the prosecutor
should consider whether non-prosecution
would help the criminal’s rehabilitationand not confuse social order. Although suchcriminal policy considerations have beenmaterialized through a long period ofpractice, I can not deny the fact that thetest for non-prosecution differs slightly
from one prosecutor to another prosecutor.
It is due to the different views of life ofindividual prosecutors. The test might also
vary with the times or change in people’s
way of thinking. Accordingly, I can notdefinitely state the reasons for nonprosecution. However, Article 51 of the95

RESOURCE MATERIAL SERIES No. 53
Korean Criminal Law enumerates thefollowing factors:
1. Factors Regarding the Suspecta) AgeAccording to the age of the suspect,prosecution’s disposition of the case might
differ. Generally speaking, prosecutors
deal leniently with juveniles, students andthe aged.
b) Character and pattern of
behavior
The character, pattern of behavior,hereditary diseases, habit, career, priorconvictions, etc., of the suspect are usuallyconsidered in making a suspension-ofprosecution decision.
c) IntelligenceIntelligence refers to the suspect’s
sensibility. Sensibility is measured by thesuspect’s academic career or extent ofknowledge.
d) Circumstances orenvironment
The suspect’s circumstances such as
family background, vocation, work place,living standard, relationship withclassmates and parental guidance areconsidered in making the non-prosecution
decision. In addition, the prosecutor also
takes into account the effect of prosecution
upon family members of the suspect.
2. Relationship to the Victim
Whether the suspect is a relative to thevictim or collegue in the work place is also
one of the factors.
3. Factors on the Crimea) Motive for commiting the
crime
Whether the crime is a premeditated or
non-premeditated one, whether it wasprovoked by the victim, or whether the96

negligence of both the suspect and thevictim has combined to cause the accident
are also important factors in making asuspension-of-prosecution decision.
b) Method and result of thecrime
The dangerousness of the method ofcommiting the crime, the profits thesuspect has gained from the crime, thepeople’s concerns on the crime, the effectof the crime on society, the extent of thedamage and the degree of possible
punishment are also considered by theprosecutor. In addition, the prosecutor
considers whether there exist reasons toaggravate or mitigate punishment.
4. Circumstances after theCommission of the Crimea) Factors related to thesuspect
Whether the suspect repents the crime,
has apologized to the victim, has tried tocompensate for the damages inflicted on
the victim, has escaped or has destroyed
evidence are important factors in making
a suspension-of-prosecution decision.
b) Factors related to the victim
Whether the damages inflicted on thevictim have been recovered, and whether
the victim wants the suspect to be punished
are also considered.
c) Other factors
Other factors considered are social
c i r c u m s t a n c e s , c h a n g e o f p e o p l e ’s
sentiment, time period elapsed after thecommission of the crime, repeal of law,change of the extent of punishment, etc.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
D. Procedure for a Decision of
Suspension of Prosecution
1. Written Oath
In practice, the prosecutor reprimands
the suspect for commiting a crime and has
him/her write an oath stating that he/shewill not commit a crime again in the future.
Irrespective of whether the suspect isdetained or not, the prosecutor summoms,
admonishes the suspect and has that
person write an oath.
In reality, however, the prosecutor sends
an admonishing letter to the suspect
instead of having him/her write an oathwhen he/she is not detained. As you may
have guesed, it is to reduce the prosecutor’s
work load.
When the suspect is a juvenaile orstudent, the prosecutor also has thesuspect’s parent or teacher submit awritten oath to the prosecutor stating thathe/she will supervise the suspect well sothat the suspect will not commit a crime
again in the future.
2. Arrangement for the Suspect’s
Protection
When making a suspension-ofprosecution decision, the prosecutor may
entrust the suspect to his/her relative or amember of the Crime Prevention
Volunteers Committee. In case there is no
person to take the suspect or it isinappropriate in the prosecutor’s opinion
to entrust the suspect to the above-statedperson, the prosecutor may request socialorganizations such as the Korean
Rehabilitation and Protection Corporation
to protect the suspect.
3. Disciplinary Action
In principle, when the prosecutor makes
a decision of suspension of prosecution
against a public official because the crimecommitted is a trivial one, the prosecutor
should ascertain the result of thedisciplinary process held by theorganization to which such public official

belongs. Moreover, within 10 days from the
beginning of the investigation against apublic official, the prosecutor is obliged to
notify the organization to which that
official belongs of the fact that investigationis going on. Generally speaking, suchorganization does not proceed withdisciplinary action against the public
official. Consequently, it is rare for theprosecutor to ascertain the results of
disciplinary action before making asuspension-of-prosecution decision against
a public official.
E. Suspension-of-Prosecution
Decision for Juvenile Offenders
on the Fatherly Guidance
Condition
Suspension of prosecution for juvenile
offenders on the fatherly guidance
condition is the suspension of prosecution
for juvenile offenders under the age of 18.
It is a suspension-of-prosecution decisionon the condition that the offender is subject
to the protection and guidance of a memberof the Crime Prevention Volunteers
Committee for a period of six months to
twelve months after the decision,
depending on the possibility of commitinga crime again in the future. The volunteers
are nominated by the chief prosecutor ofthe district public prosecutors’ office. We
have operated this system nationwide since
January 1, 1981 to prevent juvenile
offenders from being repeat offenders andto rehabilitate them into sound andreasonable citizen. To make this decision,
the prosecutor should select the person toprotect the offender among the membersof the Crime Prevention Volunteers
Committee, hand in a referral document
to the person, receive from that person acertificate stating that he/she has received
the custody of the offender and would bear
the responsibility of protecting and guidethe offender. Of course, the prosecutor
should have the offender and his/her patronsubmit written oaths.

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RESOURCE MATERIAL SERIES No. 53
Even after the decision, at least once amonth the prosecutor receives from thevolunteer how he/she is instructing andguiding the offender. They also, continue
to cooperate with each other.
If the offender does not comply with thevolunteer’s guidance or commits anothercrime, the prosecutor may remand thesuspension-of-prosecution decision andprosecute the offender.
In light of the low rate of such offenders
commiting another crime and the high rateof usage of this system, we can say that it
has worked very effectively so far.
F. Suspension-of-Prosecution
Decision on “the Protection andSurveillance Committee”
Guidance Condition
This is for offenders who need protection
and guidance by experts for a period of six
to twelve months depending upon thepossibility of the offenders commiting
another crime in the future. Suspensionof prosecution is made on the condition thatthe offender is subject to the protection andguidance of the Protection and SurveillanceCommittee.
The prosecutor entrusts the offender toa member of the committee. The procedure
for this disposition is similar to thesuspension-of-prosecution decision on thefartherly guidance condition. However,this system applies to adult offenders as
well.
G. Limitation on the Prosecutor’s
Discretionary Power Not to
Prosecute
The dangerousness of the principle ofdiscretionary prosecution is that theprosecutor might abuse the power or thatthe decision will be affected by politicalpressure. Accordingly, Korean law places
some restritions on such power:98

1. Quasi-prosecution by the Court
When a complainant is notified that theprosecutor has made a non-prosecution
decision, that person may apply for a rulingto the High Court corresponding to theHigh Public Prosecutor’s Office to which
the prosecutor concerned belongs. If theHigh Court holds that the prosecutor’s
decision of non-prosecution was
inappropriate and refers the case of a
district court judgment, prosecution ispresumed to have been made to the district
court. However, this system applies only
to crimes regarding abuse of authority by
public officials.
2. Appeal on the Prosecutor’s
Decision of Non-prosecution
When a complainant is notified that theprosecutor has decided not to prosecute a
certain person, he/she may appeal to thecompetent chief prosecutor of the High
Public Prosecutor’s Office to which theprosecutor belongs. If the appeal isdismissed, the complainant may reappeal
to the Supreme Public Prosecutor’s Office.
3. Notification of Non-prosecution
Decision and Reasons
Although this is not a direct limitationon the prosecutor ’s power of nonprosecution, it works as an indirect
limitation on such power in that it places
psychological pressure on the prosecutor.
XI. THE CASE OF ILLEGAL LOANSTO HANBO CONGLOMERATE
A. Motive of the Investigation
On January 23, 1997, the promisory
notes and checks issued by Hanbo SteelCompany, the main company of the Hanbo
Conglomerate, were dishonored. After thatthe notes and checks issued by othercompanies belonging to and dealing with
the Hanbo Group were also anticipated tobe dishonored, and as a result, it gave riseto serious chaos in the national economy.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Hanbo Conglomerate took over Kumho
Steel Company in Pusan and establishedHanbo Steel Company in December 1984.
It also proceeded with the construction of
Steel Production Facilities at Dangjin withthe credit award from banking facilities in
December 1990 when the manufacturing
capacity of Hanbo Steel Company faced its
limit according to the boom of steel
production.
There was a nationwide suspicion thatPresident Jeong Tae Soo of Hanbo Groupmade a secret fund of an enormous amountin the course of the construction of the
Dangjin Steel-Production Facilities, andthat such embezzlement committed byJeong was possible due to his connections
with politicians, high-ranking officers andstaff members of banking facilities.
The CID of the SPPO started theinvestigation of the cause of the Hanbo nonpayment on January 27, 1997 under its
own decision that the disclosure of thecause and result of the Hanbo case would
be helpful for the recovery of the national
economy stricken by the Hanbo nonpayment.
B. Process of the Investigation
The CID at first conducted a secretinvestigation in order to clarify the nationwide suspicion arising from newspaper
reports of the Hanbo non-payment on
January 23, 1997.
The Central Investigation Department
prohibited all 36 persons including the expresident of the Hanbo Group Jeong Tae
Soo from going abroad on January 27, andsearched 16 companies of the Hanbo Group
including the headquarters of Hanbo andHanbo Steel Company as well as the housesof Jeong Tae Soo and his sons.
On January 30, 1997, the CID
summoned and questioned Jeong Tae Soo.
It was found out that Jeong himself issued
the dishonored notes and checks beyond
the payment ability of Hanbo Group.

Jeong was also found to have received
an enormous amount of credit funds from
Hanbo Credit Union, one of the companiesof Hanbo Group, which is forbidden by law.
On January 31, 1997, the CID detained
Jeong.
As our investigation went further, it wasalso found that Jeong made illegal requests
to politicians and high-ranking officers ofbanking facilities in the course of credit
awards and permission of authorization ofbusiness, and offered them a great sum ofbribes in exchange.
From February 1 to 6, 1997, all sevenchief persons of banking facilities who
sponsored the credit funds supplied to
Hanbo Steel Company had been summoned
and interrogated about the process of thecredit awards and the non-payment.
The present and ex-chief persons ofbanks who received bribes from Jeong Tae
Soo, such as Shin Kwang Sik, Woo Chan
Mok, and Lee Chol Soo, were arrested.
From Feburary 10 to 12, 1997, all fivepoliticians—members of the National
Assembly Hong In-Kil, Jeong Jae-Chol, andWhang Byung-Tae from the leading party(Shin-Han-Kook Party), another
Assemblyman Kwon No Kap from the
opposition party (Kuk-Min-Whoe-Eui
Party), and the ex-Minister of Home
Affairs, Kim Woo-Sok were summoned andinterrogated. All of them were arrested asthey were found to have received bribes
amounting from 200 million to 1,000
million Won from Jeong Tae Soo in
exchange for his illegal requests.
The CID tried very hard to find any
evidence of embezzlement of the credit
funds, on the one hand analyzing accountbooks and computerized materials ofHanbo Group and on the other hand
tracing 42 bank accounts of Hanbo Group
with a search warrant.
However, these investigations were noteasy because Hanbo Group, which had
undergone the Sooso Scandal and the graft
and embezzlement case of ex-President

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RESOURCE MATERIAL SERIES No. 53
Roh of my country, had already discarded
many of its own account books.
The CID tried to the best of its ability tofigure out the processes of the making andusing of the funds accumulated by Hanbo
Group by tracing the flow of the credit
money on the basis of the account materials
gathered through search and confiscations,the retrieval of erased data contained incomputers, and the C.P.A.’s data.
The ex-Minister of Trade, Industry andE n e r g y, t h e p r e s e n t a n d e x - c h i e f
Presidential Secretary of Economy, andmany other high-ranking officials of the
Ministry of Finance and Economy, theMinistry of Maritime Affairs and Fisheries,
and the Bank Supervision Office were also
summoned and questioned as to whether
they gave unfair privileges to Hanbo Groupthrough licensing and authorization of its
business and credit awards.
In this case of nationwide concern andinterest, over 300 persons were
investigated by 108 persons under thecontrol and supervision of the Chief of the
CID. The 108 persons comprised thepersonnel of the Investigation Planning
Officer, the 1st, the 2nd, the 3rd and the
Criminal Intelligence Management
Division of the CID, research officers of the
SPPO, and officers of the Office of National
Tax Administration and the Bank
Supervision Office.
C. Keypoints of the Investigation
The prosecutorial authorities declared
their strong will to make a thoroughinvestigation of the case and set up some
important factors that are fully examined
as follows.
First, the background which enabledsuch a big credit award and the cause of
non-payment, the use of credit money andany other criminal offence which might
have been committed during theconstruction of the Dangjin SteelProduction Facilities were given priority.

100

In the investigation of high-ranking
officers of banking facilities, we stressed
the process of credit awards, possible bribes
and the breach of trust relating to the credit
awards.
In the investigation of politicians andhigh-ranking public officials, weconcentrated our efforts on finding out any
illegal privilege given by them to Hanbo
Group, any receipt of illegal benefits as theprice of such privileges, and any otherbetrayal of trust committed after thereceipt of bribes.
D. Use and Embezzlement of theFunds
The prosecutorial authorities confirmedthat Jeong Tae Soo made a fund of about
US$562 billion (about 5,005,900 million
Won) in total sum for the construction of
the Dangjin Steel-Production Facilities: a
US$319 billion (about 2,868,600 million
Won) credit from the first banking facilities(banks) apart from guaranties, a US$147
billion (about 1,319,500 Won) credit fromthe second banking facilities (financecompany and mutual savings bank, etc.),
and a US$96 billion (about 867,800 Won)
credit made of corporate bonds andpersonal debt.
The prosecutorial authorities also
confirmed that Jeong used about US$399
billion (about 3,591,200 million Won) for
facility equipment and US$133 billion(about 1,191,900 Won) for facility
management, and embezzled the rest of thefund, about US$30 billion (about 272,800
million Won).
The rest of the fund amounting to about
US$30 billion (about 272,800 million Won)
which Jeong embezzled was found to havebeen mainly used for the establishment ofaffiliate companies, Jeong’s personal tax
payment, alimony for Jeong’s ex-wife, thepurchase of Jeong’s private real estate, andillegal lobby money for politicians and chief
persons for banking facilities.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
We are still tracing about US$720
million (about 6,500 million Won), the useof which is still unknown.
E. Result of the Investigation
On February 19, 1997, the prosecutorial
authorities indicted all ten persons in
detention, that is, two staff members ofHanbo Group, three high-ranking officersof banking facilities including the chief
officer of Jaeil Bank, and five public
officials including Congressman Hong InKil. Four other staff members of Hanbo
Group including the Head of Hanbo SteelCompany were suspended fromprosecution under consideration that they
could not but follow the directions of Jeong
Tae Soo, who was the president of the whole
Hanbo Group.
The ten persons in detention including
Jeong Tae Soo were tried at the Seoul
District Court, and nine persons weresentenced to 3 to 15 years, except for one
person whose sentence was suspended.
The nine persons who were sentenced
to imprisonment at the District Court
appealed to the Seoul High Court. After afour-month trial, the Seoul High Court
rendered suspended sentences to fivepersons including three congressmen, but
rejected Jeong Tae Soo’s appeal, on
September 24, 1997. His 15-year
imprisonment sentence was still upheld,
and he appealed to the Supreme Court.

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Figure 1

Supreme Public Prosecutor’s OfficeSeoul High Public
Prosecutor’s OfficeSeoul District
Public Prosecutor’s
OfficeTaejon High Public
Prosecutor’s Office
Taejon District
Public Prosecutor’s
OfficeTaegu High Public
Prosecutor’s OfficePusan High Public
Prosecutor’s Office

Kwangju High
Prosecutor’s OfficeTaegu District
Public Prosecutor’s
OfficePusan District
Public Prosecutor’s
OfficeKwangju District
Public Prosecutor’s
OfficeTongbu Branch
OfficeHongsong
Branch Office

Andong Branch
OfficeTongbu Branch
OfficeMokpo
Branch Office

Hambu Branch
OfficeKongju Branch
OfficeKyongju
Branch Office

Ulsan Branch
OfficeChanghungBranch OfficePukbu Branch
OfficeKanggyong
Branch Office

KimchonBranch Office

Changwon District
Public Prosecutor’s
OfficeSunchonBranch Office

Sobu Branch
OfficeSosan Branch
OfficeSangju Branch
OfficeChinju Branch
OfficeHaenamBranch Office

Uijongbu
Branch Office

Chonan Branch
OfficeUisong Branch
OfficeTongyong
Branch Office

Chonju District
Public Prosecutor’s
OfficeInchon District
Public Prosecutor’s
OfficeChongju District
Public Prosecutor’s
OfficeYongdokBranch OfficeMiryang
Branch Office

KunsanBranch Office

PuchonBranch Office

Chungju
Branch Office

Kochang
Branch OfficeChongup
Branch OfficeNamwonBranch OfficeSuwon District
Public Prosecutor’s
OfficeChechonBranch Office

Yongdong
Branch OfficeSongnam
Branch Office
Yoju Branch
OfficePyongtaek
Branch Office
Chunchon District
Public Prosecutor’s
OfficeKangnung
Branch Office
Wonju Branch
OfficeSokcho Branch
OfficeYongwol
Branch Office

102

Cheju District
Public Prosecutor’s
Office107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERSENHANCEMENT OF THE RULE OF LAW AND PROMOTION
OF THE PUBLIC INTEREST—THE ROLE AND FUNCTION OF
THE PROSECUTION SYSTEM IN SINGAPOREFrancis Tseng*
I. ORGANIZATION AND OVERVIEW
A. The Attorney-General as Public
Prosecutor
All prosecutions in Singapore comeunder the control and direction of the
Attorney-General, in his role as the Public
Prosecutor.
2. The office of the Attorney-General isconstituted by virtue of Article 35 of theConstitution of the Republic of Singapore,
which also provides that the AttorneyGeneral shall have power, exercisable at
his discretion, to institute, conduct ordiscontinue any proceedings for any
offence. Section 336(1) of the Criminal
Procedure Code of Singapore further
provides that “[t]he Attorney-General shallbe the Public Prosecutor and shall have thecontrol and direction of criminal
prosecutions and proceedings under thisCode”. The Criminal Procedure Codeapplies, by virtue of section 3, to all offences
under the Penal Code and all offences
under any other written law. The AttorneyGeneral cannot be removed from office
except by the President acting on the adviceof the Prime Minister, and with theconcurrence of a tribunal consisting of the
Chief Justice and two other judges of theSupreme Court, and then only for thereason that he is unable to discharge thefunctions of his office or for misbehaviour.

* Deputy Head, Crime Division, Deputy Public
Prosecutor, Senior State Counsel, AttorneyGeneral’s Chambers, Singapore.

3. The Attorney-General has secure tenureof office and is thus able to carry out his
duties independently and without fear or
favour, to ensure that law and justice areupheld impartially and without
discrimination.
4. The structure of the Attorney-General’sChambers is shown at Appendix A.
B. Deputy Public Prosecutors
5. Section 336(3) of the Code empowers the
Attorney-General to appoint any officers or
persons to assist him or to act as his
deputies in the performance of any of thefunctions or duties of the Public Prosecutor.
Such appointments will be gazetted in the
Government Gazette.
6. In practice, Deputy Public Prosecutors(DPPs) are appointed from legally qualified
persons who are legal officers in the Legal
Branch of the Singapore Legal Service.
These legal officers are appointed by aconstitutional commission, the Legal
Service Commission under Article 111 of
the Singapore Constitution. The Legal
Service is made up of two branches, theJudicial Branch and the Legal Branch.
7. The legal officers assigned to performthe duties of Deputy Public Prosecutors areposted to the Criminal Justice Division of
the Attorney-General’s Chambers, where
they undergo intensive initial training forthree months, followed by training on the
job as well as by way of in-house seminars
and external or overseas training courses.
All junior DPPs are attached to more senior

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RESOURCE MATERIAL SERIES No. 53
DPPs who act as their mentors, advise
them and closely supervise all their work.
8. Legal Officers of the Singapore Legal
Service are liable to serve in any positionin the Legal Branch or the Judicial Branchof the Legal Service. These include thesubordinate judiciary, the registry of theSupreme Court, the Attorney-General’sChambers, the Legal Aid Bureau, theRegistry of Land Titles and Deeds, theRegistry of Trade Marks and Patents, theRegistry of Companies and Businesses, theoffice of the Official Assignee and Public
Trustee, and the legal departments of someGovernment Ministries. Legal Officers canbe and are transferred from time to time
to different postings to meet the exigenciesof staffing the various appointments as well
as for their career development.
C. Organizational Structure
9. The Criminal Justice Division of the
Attorney-General’s Chambers is theorganizational extension of the AttorneyGeneral’s function as Public Prosecutor.
The Head of the Division presently reports
directly to the Attorney-General on any
matters in connection with criminal
prosecutions. The Head is assisted by a
Deputy Head, who acts in his place
whenever necessary. In ranking below the
Deputy Head are the senior DPPs who are
the “mentors” of the Division. The
remainder of the DPPs are each directlysupervised by one of these “mentors”.
10. At present, apart from the Head and
Deputy Head, there are 8 senior and 58
junior DPPs, making a total of 68 officers
in the Criminal Justice Division. There
are, however, 9 vacancies which can be
expected to be filled when the new intakeof legal officers come in from now till theend of this year.

104

11. There are also some DPPs who
specialise in prosecuting commercial crime
cases. They are attached to a unit called
the Commercial Affairs Department whichcomes under the wing of the Ministry of
Finance. These DPPs are also legal officersof the Singapore Legal Service and take
instructions directly from the AttorneyGeneral. The Commercial Affairs
Department is headed by a Director, who
is also a senior DPP.
12. The law also allows prosecutions ofsimple criminal cases to be undertaken byexperienced police officers attached to theProsecution Branch of the Police Force.
When such officers conduct prosecutions,they function under the direction andcontrol of the Public Prosecutor and his
deputies, and independently of the Police
Force insofar as their prosecutorial duties
and responsibilities are concerned.
13. There also are lay prosecutors attached
to Government departments and statutory
bodies. These prosecutors may not be
qualified in law. They are authorised by
the Public Prosecutor to prosecute only incases involving laws which theirdepartments or bodies are charged underthose laws with enforcing. Such cases areusually very simple ones, and where any
complex question of law or fact is involved,
the help of the Criminal Justice Division
will be sought.
II. THE ROLE OF THE
PROSECUTOR
A. Investigation
14. In Singapore, the Public Prosecutor is
not involved in the investigation of offences,which is entirely within the province of thevarious investigation and enforcement
agencies. He is, however, empowered toauthorise investigations to be carried out
in certain cases, e.g., he may authorise the
Director of the Corrupt Practices

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Investigation Bureau or any police officer
to investigate the bank account, shareaccount, expense account or any otheraccount which may be relevant in a
corruption case.
15. Since prosecutors do not conduct
investigations, they do not interview
suspects or accused persons at any stage.
Such interviews are left entirely to thepolice or other law enforcement agency.
16. DPPs may, on occasion, interview
witnesses prior to going for trial for the
purpose of ascertaining their credibility or
clarifying complicated matters. These
interviews are not required under the law
to be officially recorded, and any notes
taken by the DPP are solely for his own
use. Where the DPP feels it is necessary
to do so, the investigating officer will be
asked to record a statement or further
statement as the case may be from thewitness after the interview.
17. In order to secure the attendance of
witnesses for such interviews, prosecutors
have to fall back on the powers of the police
to require witnesses to attend before themfor the purpose of obtaining information.
These powers are found in section 120 of
the Criminal Procedure Code. The police
will then arrange for a deputy publicprosecutor to be present at the interview
of the witness, and the interview may be
carried out in the office of the DPP. In
practice, however, very little resistancefrom witnesses in respect of suchinterviews is experienced.
B. Arrest
18. An arrest is made only where there isa reasonable suspicion of a seizable offence
having been committed. Arrests madewithout good grounds may subject thearresting officer (and the Government,
vicariously) to civil actions for false
imprisonment (or wrongful arrest).

Generally, if the police or other enforcement
officers are in any doubt, they will seek theadvice of a deputy public prosecutor before
proceeding to effect an arrest. It is,however, only the enforcement agency andnot the prosecution that has the power toeffect an arrest under the law. It is also
the enforcement agency (and not theprosecution) that applies for warrants fromthe Courts for the arrest of persons wherethese are required under the law.
19. Under Article 9(4) of the Singapore
Constitution and section 36 of the Criminal
Procedure Code, a person who is arrested
has to be produced before a magistrate
within 48 hours of the arrest. When that
person is brought before the magistrate
and if the investigations are incomplete orif the prosecution is otherwise not ready toproceed with the case, at least a holding
charge has to be read to him. Where theinvestigation agency requires more time toinvestigate, and requires to have custodyof the accused for that purpose, anapplication may be made by the prosecutor
to the court for the accused to be remandedin the custody of the investigation agency.
A magistrate may only remand a accused
person for a period not exceeding 7 days at
any one time, but a District Court, notbeing subject to this restriction, may
remand the accused person (in theory atleast) until the date of trial. In practice,even District Courts do not grant custodyof accused persons to investigation agencies
for more than 7 days at any one time, andapplications for extension of periods ofcustody are closely scrutinised.
Investigators have to provide good reasonsfor applications for custody and even more
so or applications for extension of custody.
20. There are, of course, other reasons aswell for detention of accused persons
pending trial which have nothing to do withthe prosecution. These include detention
as a result of inability to raise bail, or in

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RESOURCE MATERIAL SERIES No. 53
capital cases or cases of offences punishable
with life imprisonment, where no bail isallowed under the law.
C. Search and Seizure
21. Search and seizure, being part of theinvestigation process, are not within thedomain of the prosecution. The
investigation agencies use their own
discretion as to when these should be
carried out, and make the requisite
applications to court for warrants wheresuch are required. However, these agencies
may seek legal advice from the Criminal
Justice Division if necessary.
D. Advantages and Disadvantages of
the System
22. The separation of investigative andprosecutorial functions involves to someextent a duplication of expertise.
Investigators will need to know some law
in order to know what to look for, andprosecutors will need to have someknowledge of investigation policies andprocedures in order to explain such mattersin court and to counter arguments put
forward by the defence. Legal expertise isless accessible at the initial stages ofinvestigation as the lawyers are only
brought into the picture when the cases arealmost ready to be brought to court.
23. With proper training and experience,
investigators can easily acquire a working
knowledge of law and legal procedures.
Prosecutors also do not take long to obtainsufficient familiarity with investigative
processes to enable them to function
effectively. There has been a recent movein Singapore by enforcement agencies to
get the Attorney-General’s Chambers
involved in the more serious or complex
cases at an earlier stage so that legal advice
and prosecution experience can be madeavailable to assist the investigators ingathering evidence which can be used forthe ultimate purpose of prosecution in106

court. This new approach helps tominimise last minute investigations tocover areas of inquiry which would beotherwise be raised by the prosecution only
when the case is being prepared for trial.
24. The separation of investigative andprosecutorial functions, in my opinion,
ensures that no one involved in the entire
process is provided with any motivation
whatsoever to achieve a conviction whichis unjust or based on fabricated evidence.
To the contrary, investigating officers will
be wary of fabricating evidence orconfessions because they know that theirwork will be closely scrutinised by anindependent officer who will have toprosecute the case in court and will
therefore be on the look-out for any
weaknesses in the case he is going topresent. The investigator’s job is merely
to obtain whatever evidence he can andplace it before the prosecutor, who then has
to assess whether that evidence will be
sufficient to persuade a court to convict.
Where the evidence gathered from theinvestigations is insufficient, theprosecutor will not prosecute but will
withdraw the charges. He is under no duty
whatsoever to prosecute every case that isinvestigated. On the other hand, beingfrom a different branch of the government
service, he is also not the administrative
supervisor of the investigator and has no
say in the investigator’s promotions or
career path. Accordingly, neither theinvestigator nor the prosecutor will be
tempted to secure a conviction by unjustmeans.
25. The position could be very different if
the prosecutor is put in charge ofinvestigating as well as prosecuting thecase. Unless adequate safeguards are built
in, an officer put in overall charge of a casemight be tempted, in the interest offurthering his own career, to secure as
many convictions as he possibly can, and107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
might resort to achieving this at all costs,
even to the extent of fabricating evidenceor ordering this to be done by officers
subordinate to himself. In systems inwhich prosecutorial and investigative
functions are combined, safeguards will
accordingly have to be put in place toprotect against that. Prosecutors who do
not act independently of the investigations
may also lose their objectivity and becomebiased in their assessment of the evidence.
26. It has been suggested that havingprosecutors take on investigative functions
avoids subjecting suspects to unduly longdetention and unwarranted trials, and thatthe success of such a system has been borneout by statistics of the conviction rates
achieved. Under the Singapore model,
there is no fear of any undue detention or
unwarranted trial because the Public
Prosecutor assumes control as soon as any
prosecution is initiated. Caution must
always to be exercised when relying on
statistics, as the conclusions reached on thebasis of statistics may not necessarilyreflect the true position.
27. What may work well for one country
may not, because of prevailingcircumstances, work as well for another. I
would like to suggest that it may be moremeaningful to look at whether the people
subject to a particular system of criminal
justice live under fear of (a) becoming
victims of crime and (b) being prosecutedfor something they did not do. If they donot, then the system, however it operates,
must be functioning well.
E. The Prosecution Process
28. Initiation of prosecution is done by theenforcement agency charged withinvestigating the offence, usually but notalways with the prior concurrence of adeputy public prosecutor. In the case ofprivate prosecutions, it is done of theapplication by a person aggrieved to amagistrate, who will, if an offence is madeout on the face of the complaint, issue
either a summons or a warrant of arrest tocompel the attendance in court of theperson complained against. Private
prosecutions are permitted by law only in
relatively minor offences, and thecomplainants will have either to prosecute
their cases themselves or to engage private
lawyers to do so on their behalves.
Whatever the case, all prosecutions comeunder the control and supervision of the
Public Prosecutor and his deputies uponcommencement. The Public Prosecutor
may, in the exercise of his discretion, stepin and take over the conduct of any private
prosecution, to either continue with theproceedings with one of his deputies incharge of it, or to discontinue it.
29. To ensure that the Public Prosecutor
applies his mind before prosecutions forcertain offences are initiated, the written
sanction, consent or authorisation of the
Public Prosecutor as the case may be isrequired before cognizance can be taken bya court of those types of offences. This
prevents any enforcement agency or
private person from using the criminal
process for those offences without theknowledge of the Public Prosecutor.
Examples of such offences are corruption,
forgery, giving of false evidence or false
information to a public officer, criminal
conspiracy, and offences against the state.
In addition, prosecutions for every offence
tried in the High Court (which generallyhears cases in which the penalty is capital
punishment or life imprisonment) and all
criminal appeals are required by law to be
conducted by the Public Prosecutor or oneof his deputies, and prosecution for every
seizable offence before a District Court isrequired to be conducted by the Public
Prosecutor, a deputy public prosecutor, oran advocate, officer or other person
specially authorised by the Public
Prosecutor.

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RESOURCE MATERIAL SERIES No. 53
F. Preliminary Inquiry
30. In the case of a prosecution before theHigh Court, there is an additional stepwhich has to be taken before trial. A
preliminary inquiry before a magistrate
has to be conducted by a deputy publicprosecutor or some other officer authorised.
The evidence is produced before themagistrate, and only if the magistrate findsthat there are sufficient grounds forcommitting the accused person for trial will
the case be sent up to be heard before theHigh Court. If the magistrate finds that
there are insufficient grounds to commit
the accused person for trial, he willdischarge him. This procedure provides yet
another check before any person isprosecuted for a serious offence.
G. Advice and Directions of the
Public Prosecutor’s Office
31. When cases are referred by aninvestigating agency to a deputy publicprosecutor for advice, the DPP may approve
the initiation or continuance of theprosecution, instruct further investigations
to be conducted, or direct that the charge
be withdrawn or that no action is to betaken against the suspect. In seeking suchadvice, the enforcement agency will haveto produce to the DPP all the investigation
papers, including the statements of thevarious witnesses and the suspects,
photographs and sketch-plans, medical andother reports, investigation diaries andsummaries of the facts. On occasion, theDPP may also call for the investigation
papers on his own motion or interview thewitnesses before giving directions
regarding the prosecution of any case.
32. In general, the Attorney-General’sChambers will normally proceed to directthat prosecution be proceeded with when
there is a reasonable prospect of securing aconviction, given that the burden of proof
in criminal cases is that the case must be
proved beyond reasonable doubt. It should108

be borne in mind that in the vast majorityof cases, the prosecution in an adversarial
system such as the one we have in
Singapore does not have the benefit of fully
considering the defence case before trial.
Neither does the prosecution have thebenefit of interviewing the accused persons
prior to the trial for the purpose of
assessing their credibility or the merits of
their defence. All that is available to theprosecution up to that stage are thestatements recorded by the investigatorsfrom the accused persons, who may nothave disclosed everything in theirpossession or knowledge to theinvestigators. The assessment whether
there is “a reasonable prospect of securing
a conviction” is, therefore, based onwhatever reliable evidence there is accessto.
33. We consider that unless there is areasonable chance on the available
evidence that a conviction will eventually
result, it may not be fair to an accused
person to put him or her through therigours of a public trial. Being tried for an
offence involves expense for the defendant,
who may have to pay his lawyers’ fees. A
defendant also has to go through theinconvenience of appearing in court, andhis reputation may also suffer from having
to defend himself in public against acriminal charge. The mental torture ofundergoing a trial also adds to the reasons
why a person should not be put through atrial unless there are good grounds forbelieving that conviction would follow.
34. In order to ensure good and consistentdecisions in capital and more serious cases,
the Attorney-General’s Chambers Criminal
Justice Division has set up a system inwhich every such case is reported by theprosecuting DPPs to a panel consisting of
three or more senior DPPs (or “mentors”),
who have equal say in the recommendation
made. The recommendation is passed

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
through the Head (or Deputy Head) of theDivision, who adds his suggestion to thepanel’s and forwards the entire file to the
Attorney-General for the final decision. In
this way, the Attorney-General gets theassistance of the two most senior levels of
officers before he reaches his decision. The
decision is thus not left to a single officer
to make, but is taken at the very highest
level, with the combined assistance of themost experienced officers.
H. Exercise of the Discretion Not to
Prosecute
35. It is not in every case where there isgood evidence that the Public Prosecutor
will direct that the offender be prosecuted.
Mitigating factors are taken into
consideration in deciding whether or not
to proceed with prosecution, and not
infrequently, warnings are issued in lieu
of prosecution where there are good
grounds for doing so. These grounds may
include sympathetic considerations; theage or immaturity of the offender; theprovocation or temptation provided by thevictim; remorse or rehabilitation of theoffender; low degrees of culpability,
contribution to the offence or guilty intent;
and voluntary disclosure of the offence and/or restitution on the part of the offender.
36. In addition to the cases which theprosecution does not proceed with, there isanother category of offences which arelisted as being compoundable under the
Criminal Procedure Code. Such offences
may be compounded by the victim with theconsent of the court, and while any
objection on the part of the prosecution will
be taken into consideration by the court indeciding whether or not to give therequisite consent, the final say on whether
an offence is to be compounded or not
belongs to the court and not theprosecution. Composition of an offence has
the effect of an acquittal, and the accused
person is thereafter discharged fromfurther having to attend the court
proceedings. The composition of offences
can be done only after the accused has been
indicted. Only relatively minor offences
mainly affecting particular victims
individually are listed as compoundable in
the Criminal Procedure Code.
I. Remedies Where the Public
Prosecutor Decides Not to
Prosecute
37. The discretion given to the Public
Prosecutor regarding prosecution is a very
wide one. In theory, it might be possible
for a private person who is aggrieved by adecision of the Public Prosecutor to apply
to the Supreme Court for a prerogative writknown as a writ of mandamus to compel
the Public Prosecutor to prosecute. Thishas however never been tested in practice.
It seems fairly likely that a court would
generally be extremely reluctant, on
grounds of public policy, to force the Public
Prosecutor to disclose the reasons
underlying the exercise of his discretion;and there is decided authority for the
proposition that the courts will notinterfere with the Public Prosecutor’s
choice of the charge to be proceeded on.
J. Plea Bargaining
38. This is done solely between theprosecution and the defence, and it usually
involves negotiations for a reduced numberof charges and/or an amendment to lessserious charges in exchange for which theaccused will agree to plead guilty. The
court is never brought into thenegotiations, and in fact the practice is tokeep all such communications from thecourt in order to avoid prejudicing thejudge. If, for example, the judge is asked
to comment on the sentence an accused
person may expect if he were to plead
guilty, an impression may be given at thatstage that the accused person is in fact
guilty. If negotiations break down, anotherjudge would have to hear the case, to avoid

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RESOURCE MATERIAL SERIES No. 53
any possibility of prejudice. If the judge is
not brought into the negotiations in thefirst place, the parties can negotiate more
freely, without fear that what they say may
be used against them in the event thatnegotiations break down.
39. Where an accused person pleads guilty
before the court to a non-capital charge, theproceedings will consist of the court
ensuring that the accused person
understands the nature and consequencesof his plea. A statement of the relevantfacts on which the prosecution relies is thenread out and the accused person is asked
whether he admits those facts. If the facts
are admitted without qualification, thecourt will convict the accused person on his
plea of guilty and proceed with thesentencing process. If the accused person
pleads “not guilty” or qualifies the facts
read out, the court will order the hearingof a trial. For capital cases, trial hearings
will be conducted regardless of the pleas
given by the accused persons.
40. The benefit to the State that accrues
from plea bargaining lies in the fact that
expensive court time is saved if an accused
person pleads guilty. The savings in
manpower, in paying the salaries of the
judicial officers and court staff, and thoseof the prosecutors and their supporting
staff may be considerable. The freeing ofcourts also results in other accused persons
being able to have their cases heard earlier.
At the same time, a plea of guilty is a
mitigating factor in favour of the accused.
41. However, the prosecution is always
mindful of the need for deterrence when it
considers matters raised in plea
bargaining, and always endeavours to seethat a balance is struck between thebenefits mentioned and the other objectivesof the criminal justice system.

110

42. The Attorney-General’s Chambers does
not initiate plea bargaining with accused
persons, especially those who are notrepresented, in order to avoid situations inwhich the prosecution may be accused fortrying to intimidate suspects. All accused
persons or their counsel are free however
to write in making representations and allsuch representations will be accorded due
consideration by a deputy publicprosecutor.
K. Immunity from Prosecution
43. Offenders may, on every rare occasions,be offered immunity from prosecution if
they agree to testify against theiraccomplices. Such offers are sometimes
made where it would not otherwise be
possible to obtain evidence against any
person involved in the offence. Rather than
let all the offenders get away scot-free, theprosecution may select one or more of those
involved and offer immunity in exchange
for their testimony against the others.
44. Generally, it is the investigator who
initiates the move to offer immunity. In
our experience, we have hardly ever comeacross any accused person offering inrepresentations made to a deputy publicprosecutor to testify for the prosecution in
exchange for an assurance that he will not
be prosecuted. More often, when an
accused person offers to testify for theprosecution, what is asked in exchange isa reduced charge or a reduced number ofcharges. This demonstrates the attitude
taken by the prosecution in Singapore—that wherever possible, it will insist on atleast some punishment for every guilty
person.
45. The investigator has no authority tomake an offer of immunity, but may
approach the accused persons with thesuggestion and gauge their reactions.
Thereafter, the investigator will refer to the
Attorney-General’s Chambers for approval

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
to make the promise to the person(s)chosen. The request by the investigator isdealt with at the highest level of the
Criminal Justice Division, before it isreferred to the Attorney-General for his
decision.
46. Offers of immunity are made only onvery rare occasions. More often than not,a deputy public prosecutor will prefer not
to proceed at all than to offer immunity.
Great care is taken by the AttorneyGeneral’s Chambers to ensure that theaccused persons proceeded against arereally guilty and that there is no possibilityof any miscarriage of justice before asuggestion to offer immunity to any
accomplice is agreed to.
L. Judicial System
47. The courts for the administration of
criminal justice in Singapore consist of:a. the High Court,
b. District Courts, andc. Magistrates’ Courts.
District Courts and Magistrates’ Courts
are collectively termed “Subordinate
Courts”.
48. In addition, there are two levels of
appeal courts. The High Court in theexercise of its appellate jurisdiction hears
appeals from District Courts andMagistrates’ Courts, while the Court ofAppeal hears appeals from the original
jurisdiction of the High Court.
4 9 . A t t h e b o t t o m o f t h e l a d d e r,
Magistrates’ Courts have power to hear anddetermine prosecutions for offences forwhich the maximum term of imprisonment
provided by law does not exceed 3 years.
District Courts have jurisdiction to try all
offences for which the maximum term of
imprisonment does not exceed 10 years,
and the High Court has unlimited
jurisdiction to hear any offence punishable
by the laws of Singapore.

50. The structure of the Judiciary is set
out in Appendix B.
M. Trial Statistics
51. The numbers of trial hearings
prosecuted by the Attorney-General’sChambers for 1995 and 1996 are shown inAppendix C. In 1996, the number of 2504
trials in the Subordinate Courts washandled by an average of 31 DPPs, making
a total of about 6 to 7 trials per DPP permonth. This includes time for preparation
for the trials, interviews of witnesses,
familiarisation with the facts of the cases
and research on the law. In contrast, 38
DPPs dealt with only 67 cases in the High
Court during the same period of time. The
stark difference is accounted for by the factthat 2 DPPs are assigned to prosecute eachHigh Court case, and the 38 DPPs also
handled 247 Magistrates’ Appeals, 23
appeals to the Court of Criminal Appeal,
25 Criminal Revision proceedings and 19
Criminal Motions. The cases handled bythese 38 DPPs involve much more work percases, and generally the more senior DPPs
are assigned to do this type of work. In
addition, most of the other work listed inAppendix C is also done by these 38 DPPs.
N. Fixing of Trial Dates
52. After accused persons are charged incourt, there usually follows a period whenmatters preliminary to trial have to beattended to. Investigations may have to
be completed, advice may have to be soughtby enforcement agencies from a deputy
public prosecutor, plea bargaining may be
attempted, and counsel may need time totake instructions from their clients. The
progress of these matters is closely
monitored by the court, and parties are
required to return to report to the court
periodically. When all such matters havebeen completed and the cases are ready fortrial, the court will fix a pre-trial conference
for each case. In the pre-trial conference,
matters such as agreement on certain facts,

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RESOURCE MATERIAL SERIES No. 53
crystallization of issues, and the exchange
of certain evidence, particularly
documentary evidence are attended tobefore the judge. Dates are then allocatedaccording to the time that the judge,
assisted by the parties, estimates to benecessary for the hearing of each particular
case.
O. Trial
53. At the commencement of the trial, thecharge is read to the accused person. Thisis done even if it had been read out to him
previously on other dates. The accused
person is then asked whether he is guiltyof the offence or whether he claims to betried. If the accused person pleads guilty,
the court will have to satisfy itself that heunderstands the nature and consequencesof his plea, and if so, will convict him of theoffence. If the accused claims to be tried,the court will proceed to hear the evidence.
54. The prosecution has to call its
witnesses first. The discretion as to which
witnesses to call and in what order lies
solely with the prosecutor. Each witness
is first examined in chief by theprosecution, meaning that the prosecution
has to elicit the evidence from its witness
by asking questions in such that theanswer is not suggested to the witness.
Thereafter, the witness may be crossexamined by the accused person or hiscounsel. Cross-examination is not
subjected to the same restriction as
examination in chief. When the crossexamination is concluded, the witness may
be re-examined by the prosecutor. Reexamination is confined to clarifying
matters raised in cross-examination, and,as in the case of examination in chief,leading questions may not be asked.
55. After the prosecution has called all its
witnesses, the court has to determine
whether a prima facie case has been madeout, which if unrebutted would warrant the112

conviction of the accused. Before doing so,
the court will hear submissions from boththe prosecution and the defence. If thecourt finds that no such case has been madeout, it will record an order to acquittal.
Otherwise, the court will call upon theaccused to give evidence in his own defence,
and will explain to him the effect of notdoing so.
56. If the accused person elects to give
evidence, his testimony has to be taken
before that of any other witness for the
defence. All witnesses for the defence are
examined in chief by the accused or hiscounsel, cross-examined by theprosecution, and re-examined in much thesame manner as the prosecution witnesses
before them. Where there is more than one
accused person, each witness (including theaccused persons themselves if they elect totestify) may be cross-examined on behalfof any other accused person jointly charged
in the same trial.
57. At the close of the case, the prosecution
and the defence may again address thecourt. If the court finds the accused not
guilty, it will record an order of acquittaland discharge him provided no othercharge is pending against him. If the court
finds the accused guilty of the charge, itwill convict him of the same and proceedto pass sentence.
P. Some Burdens of Proof
58. At the close of the case for theprosecution, the court is not required toweigh the evidence or the credibility of thewitnesses, but only to determine whether
on the evidence before it, if such evidence,
not inherently incredible, be true, all the
ingredients of the charge have been madeout.
59. If the accused, after having been called
upon by the court to give evidence in his
own defence, refuses to testify, the court

107TH INTERNATIONAL TRAINING COURSE
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may, in determining whether he is guiltyof the offence, draw such inferences fromthat refusal as may appear proper,
including inferences which may be adverseto the accused.
60. The burden at the conclusion of all theevidence is somewhat different from thatat the close of the prosecution’s case. In
order that a conviction be recorded, thecourt has to find that the prosecution has
proved it case beyond reasonable doubt.
Q. Sentencing
61. Before proceeding to pass sentence, thecourt will want to hear from theprosecution regarding the antecedents of
the accused person. The prosecutor will
read out the antecedents if any and theaccused will be asked if he admits those
antecedents. If he does, the antecedents
will be taken as proved, otherwise ahearing will be conducted for theantecedents to be proved.
62. The defence will then be given a chance
to make a plea in mitigation to the court.
This plea must be confined to matterswhich do not call in question the legality
or validity of the conviction. The
prosecution may dispute any part of theplea in mitigation, and if not withdrawn
by the defence, a hearing may be conducted
for the disputed portion to be adjudicatedupon. The prosecution may also in certain
cases address the court on the sentence tobe imposed. This is not a right as suchprescribed in any statute, but is a practicewhich has developed. The courts generally
take the attitude that it does not hurt tohear what the prosecution has to say. The
judge can always disregard what theprosecutor says if he does not agree.
63. As a matter of practice, theprosecution’s address on sentence does nottouch on the quantum or tariff, only on thefactors which may be seen to aggravate theoffence, and in some cases on the type ofsentence that the prosecution is asking thecourt to impose. The most common
instance in which the prosecution willaddress the court on sentence is where adeterrent sentence is asked for on groundsof public policy or because of thecircumstances of the case.
R. Victim Impact Statements
64. Of late, a practice has developed
whereby after recording a conviction, thecourt may call for a statement from thevictim in respect of the impact that thecrime in question has had on him or her.
This statement is used to assist the courtin assessing sentence. In the past, only onrare occasions did the court ask to hearfrom the victim. Now this procedure has
been formalized and judicial officers areactively encouraged to call for suchstatements in appropriate cases.
65. Although arrived at independently by
the judiciary in Singapore, this practice of
calling for such statements would meetwith the approval of a rising school ofthought known as “Victimology”, which iscurrently gaining popularity, particularly
in Europe, New Zealand and the U.S.A.
This school urges that the rights of victims
of crime should be taken seriously andtreated as no less important than the rightsof accused persons.
66. The prosecution has undertaken thetask of assisting the court in obtaining suchstatements. Instructions will be given bya deputy public prosecutor to theinvestigating officer to contact the victim
for this to be done. Sometimes, when theprosecution intends to address the court on
sentence, instructions will be given inadvance for a statement to be prepared,
even without the court calling for it.
67. The investigating officer will contact
the victim and inform him or her that it is113

RESOURCE MATERIAL SERIES No. 53
proposed that a statement setting out the
impact the offence has had on the victim
be tendered to assist the court in deciding
on the appropriate sentence for theoffender. The victim is informed that he or
she is at liberty to refuse to mention
anything which he or she does not want tobe brought to the court’s attention for thispurpose, but any information given in thestatement has to be true and correct, andany false information would render thevictim liable to criminal prosecution. The
victim is also told that a copy of thestatement may be made available to otherpersons such as the accused, defence
counsel, and the media, and that he or she
may be cross-examined on any matterrelevant to it.
68. After the statement is recorded, adeputy public prosecutor will tender it to
the court for consideration before sentence
is passed.
S. Appeals
69. The conviction rates in 1996 for someof the more serious offences tried in theHigh Court are set out in Appendix D. The
rates of conviction and acquittal areconsistent with the prosecution’s policy ofproceeding only where there is a reasonable
prospect of securing a conviction.
70. Any person (including the Public
Prosecutor) who is dissatisfied with any
judgement, sentence or other orderpronounced by a District or Magistrate’s
Court in a criminal matter to which he is aparty may appeal to the High Court,
subject to the following restrictions:a. where an accused person has pleaded
guilty, there can be no appeal except
as to the extent or legality of thesentence; andb. when an accused person has beenacquitted, there shall be no appeal
except by the Public Prosecutor.

114

71. The High Court may also on its own
motion call for the record of proceedings ofany case heard in a District or Magistrate’s
Court and deal with it as if an appeal had
been field.
72. Appeals from judgements or sentencesof the High Court may be made to the Courtof Appeal in the exercise of its criminal
jurisdiction. The Public Prosecutor may
appeal against the acquittal of any personor on the ground of the inadequacy of any
sentence passed.
73. In 1996, out of a total of 33 appeals to
the High Court by the prosecution, 18 wereallowed, 11 were dismissed and 4 werewithdrawn. The High Court allowed a totalof 50 appeals by accused persons anddismissed 93, and 19 were withdrawn
during the same period. The figures showthat accused persons filed about 5 times
as many appeals as the prosecution.
74. The corresponding figures for appeals
to the Court of Appeal decided in 1996 are
as follows:•Prosecution
Filed
4

Allowed1

Dismissed Withdrawn
3 (1 byNil
dissenting
judgement)•Defence
Filed
44

Allowed2

Dismissed Withdrawn
3210

75. It can be seen from the above figuresthat the prosecution files very few appeals
to the Court of Appeal compared to thedefence. The reason for this is that where
there is a death sentence passed, an appeal
will almost inevitably follow, although aperson sentenced to death is not compelledby law to file an appeal.

107TH INTERNATIONAL TRAINING COURSE
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76. Appeals by the prosecution to the
Court of Appeal against acquittals incapital cases have hardly ever been
allowed. To the best of my memory, there
have been only two such cases previously,
in which acquittals in drug trafficking
cases were overturned on appeal and theoffenders were sentenced to death by the
Court of Appeal. The case in 1996 which
was dismissed with a dissenting judgement
was the closest to which an acquittal in amurder case has ever come to being
overturned on appeal. There has howeverbeen one murder case in the past in which
the prosecution’s appeal against an
acquittal without the defence being called
was allowed. The case was sent back to
the High Court for the defence to be called
upon, and the accused was convicted after
the High Court heard the defence. Thereh a v e , h o w e v e r, b e e n s e v e r a l d r u g
trafficking cases in which cases weresimilarly sent back to the High Court forthe defence to be called. Some resulted inacquittals and one in a conviction after the
defences were heard.
III. MISSION
77. The mission statement of the AttorneyGeneral’s Chambers Criminal JusticeDivision is: “To promote a just criminal
justice system by pursuing a fair andimpartial policy in the prosecution of
offenders”. Towards this end, theprosecution in Singapore seeks to give due
consideration to, and to balance the rights
of all those affected by the system—thesocial community, the accused and thevictim—in supplementing the efforts andendeavours of the Judiciary in providing
prompt, enlightened and transparently fairadministration of criminal justice.

115

116

International Affairs
Division• Advise, negotiate and draft
inter-governmental andother agreements.
• Advise and prepare
documents on internationallaw matters.
• Represent Singapore in
legal proceedings before
international tribunals.
• Represent Singapore atinternational forums,
seminars, etc. on legal
matters.

Crime Division• Control and direct all
criminal prosecutions.
•Conduct criminal
prosecutions instituted in
the name of the Public
Prosecutor.

• Advise and represent
Government in all civil
proceedings and prepare
governments contracts andother agreements.
• Undertake AG’s statutoryfunctions such as acting as
guardian ad litem for
adoption proceedings,
custodian of charities andreview of applications foradmissions to the Singapore
Bar.

• Draft bills and subsidiarylegislation and give advice
on problems of statutory
interpretation.

Law Reform & Revision Division*

Civil Division

PARLIAMENTARY COUNSELSOLICITOR GENERALATTORNEY-GENERAL(Public Prosecutor)

STRUCTURE OF ATTORNEY-GENERAL’S CHAMBERS

Legislation Division

APPENDIX ARESOURCE MATERIAL SERIES No. 53

CONTROL OF APPEAL(Chief Justice & 2 Judges of Appeal)

STRUCTURE OF THE JUDICIARY

Magistrate’s
Court• General civil jurisdiction
for claims up to $30,000.
•General criminal
jurisdiction for offences
punishable with fine up to$2,000, imprisonment up
to 2 years, or caning up to
6 strokes (for maleoffenders) or any lawful
combination of thesepunishments.

District Court• General civil jurisdiction
for claims up to $250,000.
•General criminal
jurisdiction for offences
punishable with fine up to$10,000, imprisonment up
to 7 years, or caning up to
12 strokes (for maleoffenders) or any lawful
combination of thesepunishments.
To ascertain causes
and circumstancesof all unnatural
deaths.

Corner’s
Court

Tr y o f f e n c e scommitted by
offenders below 16
years.

Juvenile
Court

FamilyCourt
Deal with family
law matters andadoptions.

SUBORDINATE COURTS

Deal with claims
up to $10,000 or$20,000 by consent
of both parties.

Small Claims
Tribunals• Appellate criminal jurisdiction—appeals from the District and Magistrate’s Courts and any points of law reserved by such a Court.

Provide a forum for
disputants to resolve
disputes involving family
and juvenile matters,
small civil claims andMagistrate’s complaints
without adjudication.

Court Mediation
Centre• Original civil jurisdiction for claims exceeding $250,000.
• Original criminal jurisdiction for all offences under Singapore law committed within Singapore and on board Singapore-registered ships and aircraft; offences committed bySingapore citizens on high seas aircraft and offences committed by any person amounting to piracy on the high seas and hijacking or aircraft.
• Appellate civil jurisdiction—appeals from the District and Magistrate’s Courts for claims exceeding $5,000 or otherwise leave is required. Also appeals from other tribunals if the law
so provides.

HIGH COURT(Chief Justice, 12 Judges, 4 Judicial Commissioners)• Appellant criminal jurisdiction—appeals from High Court in exercise of its original criminal jurisdiction and question of law from a subordinate court appeal to the High Court.

• Appellate civil jurisdiction for claims exceeding $30,000 or otherwise leave is required.

APPENDIX B

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

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RESOURCE MATERIAL SERIES No. 53
APPENDIX CCRIME DIVISION
Types of Files/Matters
General Advice
Attending to Representations of
Accused Persons or Their Counsel
Considering Requests from Private
Parties for Fiats
Coroner’s Inquiries
Preliminary Inquiries
Subordinate Court Trials
High Court Trials
Magistrate’s Appeals
Criminal Appeals
Criminal References
Criminal Revisions
Criminal Motions

Number of New Files
1995
1996
600
590
4183

3967

220

262

49
70
1613
108
259
73
3
28
43

95
49
2504
67
247
23
0
25
19

APPENDIX D
1996 CONVICTION RATES FOR SERIOUS OFFENCES

Drugs
Rape
Unnatural Offences
MurderHomicide
Arm Offences
Robbery

118

Convicted
after Trial
28
4
1
7
3
1
2

Plead Guilty
9
10
1
0
11
2
2

Convicted on
Reduced Charge
0
0
0
2
0
0
0

Acquitted
4
1
1
3
0
1
0

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

THE ROLE AND FUNCTION OF PROSECUTION IN SRI LANKA
D.P. Kumarasingha*
I. WHERE AND HOWPROSECUTIONS ARE INSTITUTEDIn Sri Lanka prosecutions are instituted
in two original courts namely, theMagistrate’s Court and the High Court.
Proceedings are instituted in the
Magistrate’s Court in one of the following
ways (Section 136 of the Code of Criminal
Procedure Act):(1) on a complaint being made orally orin writing to a magistrate of such
Court that an offence has beencommitted which such Court has
jurisdiction either to inquire into or
try; (Such a complaint if in writing
shall be drawn and countersigned bya pleader and signed by thecomplainant);(2) on a written report to the like effectbeing made to a magistrate of such
Court by an inquirer into sudden
deaths or by a peace officer or a public
servant or a servant of a municipal
council or of an urban council or of a
town council;(3) upon the knowledge or suspicion of amagistrate of such Court to the likeeffect provided that whenproceedings are instituted under thisparagraph the accused or when there
are several persons accused, any oneof them shall be entitled to requirethat the case not be tried by themagistrate upon whose knowledge or
suspicion the proceedings were
instituted, but either be tried byanother magistrate or committed fortrial;* Additional Solicitor-General, Attorney-General’s
Department, Sri Lanka.

(4) on any person being brought before amagistrate of such Court in custody
without process accused of having
committed an offence which such
Court has jurisdiction either toinquire into or try;(5) upon a warrant under the hand of the
Attorney-General requiring amagistrate of such Court to hold an
inquiry in respect of an offence whichsuch Court has jurisdiction to inquire
into; or(6) on a written complaint made by acourt under section 135 (giving or
fabricating false evidence andforgery).
Prosecutions in the High Court are
instituted by the Attorney-General. The
procedure is as follows:(1) In serious crimes the police, under
section 393 (5) and (6) of the Code of
Criminal Procedure Act, send to the
Attorney-General a file containing
the notes of investigation and thestatements of witnesses and thesuspects, together with a report of thecase and other relevant documents.
The Attorney-General may forward
an indictment to the High Court
depending on the sufficiency ofevidence.
(2) In cases where a magistrate isrequired to hold a preliminary
inquiry under section 145 or section
136(e) of the Code of Criminal
Procedure Act the Magistrate, if heis satisfied of the sufficiency ofevidence, commits the accused tostand trial in the High Court andforwards to the Attorney-General acopy of the proceeding, together withother relevant documents.

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RESOURCE MATERIAL SERIES No. 53
The Attorney-General, if he is satisfiedof the sufficiency of evidence for committal,
will forward an indictment to the High
Court.
After an indictment is forwarded to theHigh Court in the manner aforementioned,
the prosecution will invariably be
conducted by a State Counsel. In
important cases and in cases wheredifficult questions of law are likely to ariseor cases which depend solely on
circumstantial evidence, it is always thepractice of the Attorney-General’s
Department to assign a senior officer to
conduct the prosecution.
Every indictment forwarded to the High
Court shall contain,(1) a l i s t o f w i t n e s s e s w h o m t h eprosecution intends to call.
(2) a list of documents and things
intended to be produced at the trial.
(productions).
The following documents should be
attached to every indictment,(1) where there was a preliminary
inquiry, a certified copy of the recordof the inquiry and of the documents
and of the inquest proceedings if
there had been an inquest;(2) where there was no preliminary
inquiry, copies of statements to thepolice made by the accused and thewitnesses listed in the indictment;(3) copies of all reports and sketches
listed in the indictment;(4) copies of the notes of any identification
parades that may have been held
during the investigation of the case;(5) copies of any statements made to themagistrate under section 1271 by:(a) the accused; and(b) a n y w i t n e s s l i s t e d i n t h e
indictment; and1Section 127(1): Any magistrate may record any
statement made to him at any time before thecommencement of any inquiry or trial.

120(6) copies of such portion of the notes,
containing the observations of thescene of offence made during theinvestigation of the offence by apublic officer.
The indictment shall be in the prescribed
form and shall be brought in the name of
the Attorney-General and shall be signedby the Attorney-General or the SolicitorGeneral or a State Counsel.
The proceedings do not abate or
determine by reason of the death orremoval from the office of the AttorneyGeneral (Section 162 of the Code of
Criminal Procedure Act).
II. ORGANISATION OF THE
ATTORNEY-GENERAL’S
DEPARTMENT AND ITSFUNCTIONSAt this stage, it would be appropriate to
set out the structure of the AttorneyGeneral’s Department and discuss theinternal working of the Department. At
the apex is the Attorney-General who is thehead of the Department. He is theprincipal law officer of the State and isaccorded the first place among public
servants at official functions. The next incommand is the Solicitor-General followedby three Additional Solicitors-General.
Additional Solicitors-General and above
are also appointed as President’s Counsel(equivalent of Queen’s Counsel in England)by virtue of their office. Below them there
are nine Deputy Solicitors-Generalfollowed by Senior State Counsel and State
Counsel.
The Attorney-General’s Department isdivided into two divisions: the Criminal
Division and the Civil Division. The
Solicitor-General who is in charge of theadministration of the Department is also
the head of the Civil Division while themost senior Additional Solicitor-General is
the head of the Criminal Division.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
In cases of murder, attempted murder
and rape, it is mandatory that theprosecution be instituted in the High Court
by the Attorney-General. In such cases themagistrate, after committal of the accused
to stand trial in the High Court, forwards
to the Attorney-General copies ofproceedings of the preliminary inquiry
together with other relevant documents. In
other serious cases such as robberies, thepolice invariably forward the notes of theinvestigation and the statements of thewitnesses and the suspects, together withother relevant documents, to the AttorneyGeneral for advice.
Once a file reaches the AttorneyGeneral’s Department, it is registered andsent to an allocating officer who is a senior
officer in the Department. He allocates it
to a State Counsel for necessary action.
The State Counsel studies the case andsubmits a report to his supervising officer
who is invariably a Senior State Counsel.
The report shall discuss the facts of thecase, analyse the evidence available andmake one of the following
recommendations:• In the case of committal by themagistrate:(1) To forward indictment to the High
Court—if there is sufficient evidence;(2) To quash the committal and direct themagistrate to discharge theaccused—if there is not sufficientevidence to make out a prima facie
case; or(3) To direct the magistrate to record
further evidence.
• In the case of files submitted by thepolice:(1) To indict the suspect or suspects—ifthere is sufficient evidence to makeout a prima facie case;(2) To d i s c h a r g e t h e s u s p e c t o rsuspects—if there is no evidence or if
the evidence available isunsatisfactory and cannot form thebasis of an indictment; or(3) To order further investigations if thepolice have not done a proper
investigation.
The supervising officer will study thereport and decide on the course of action.
III. POWERS OF THE ATTORNEYGENERALThe Attorney-General possesses very
wide powers in respect of criminal
prosecutions. These powers are set out insection 393 of the Code of Criminal
Procedure Act and are stated below:
A. Section 393(1): It shall be lawful for the
Attorney-General to exhibit information,
present indictments and to institute,undertake or carry on criminal proceedingsin the following cases, that is to say,(a) in the case of any offence where apreliminary inquiry under Chapter
XV by a Magistrate is imperative or
may be directed to be held by the
Attorney-General; (This chapter
relates to inquiries by Magistrates
into cases which appear not to be
triable summarily by the Magistrate’s
Court but triable by the High Court.
Such offences are set out in the Second
Schedule to the Judicature Act).
(b) in any case where the offence is notbailable; (Non-bailable offences are
set out in the Schedule to the Code of
Criminal Procedure Act. There arealso some offences which are madenon-bailable by special statutes).
(c) in any case referred to him by a State
Department in which he considers
that criminal proceedings should beinstituted;(d) in any case other than one filed under
section 136(1)(a) of the Code whichappears to him to be of importanceor difficulty or which for any otherreason requires his intervention;

121

RESOURCE MATERIAL SERIES No. 53(e) in any case where an indictment ispresented or information exhibited in
the High Court by him.
(2) The Attorney-General shall give
advice, whether on application or on his
own initiative to State Departments, public
officers, officers of the police and officers
in corporations, in any criminal matter ofimportance or difficulty.
(3) The Attorney-General shall beentitled to summon any officer of the Stateor of a corporation or of the police to attend
his office with any books or documents andthere interview him for the purpose of,(a) Initiating or prosecuting any criminal
proceeding, or(b) Giving advice in any criminal matterof importance or difficulty.
The officer concerned shall comply withsuch summons and attend at the office of
the Attorney-General with such books anddocuments as he may have been summoned
to bring.
(4) The Attorney-General may nominate
State Counsel or employ any attorney-atlaw to conduct any prosecution in any court
and determine the fees to be paid to suchattorney-at-law.
(5) The Superintendent or AssistantSuperintendent of Police in charge of any
division shall report to the AttorneyGeneral every offence committed within his
area where,(a) preliminary investigation under
Chapter XV is imperative; or(Chapter XV deals with inquiries into
cases which appear not to be triablesummarily by Magistrates’ Courts but
triable by the High Courts).
(b) for the institution of proceedings theconsent or sanction of the AttorneyGeneral is required; or(c) a request for such report has been
made by the Attorney-General; or(d) such Superintendent or AssistantSuperintendent considers the advice
or assistance of the Attorney-General
necessary or desirable; or122(e) the Magistrate so directs; or(f) the offence was cognizable and theprosecution was withdrawn or cannot
be proceeded with.
(6) When reporting in terms ofsubsection (5) the Superintendent orAssistant Superintendent of Police, as thecase may be shall supply to the AttorneyGeneral,(a) a full statement of the circumstances;(b) copies of the statements of all
witnesses;(c) such other information, documents or
productions as may be relevant or as
may be called for by the AttorneyGeneral; and(d) where an inquest has been held, a
copy of the inquest proceedings.
(7) Notwithstanding any otherprovisions of the Criminal Procedure Code,it shall be lawful for the Attorney-General,
having regard to the nature of the offenceor any other circumstances, in respect ofany summary offence,(a) to forward an indictment directly to
the High Court; or(b) to direct the Magistrate to hold apreliminary inquiry in accordancewith the procedure set out in Chapter
XV in respect of any offence specified
by him where he is of opinion thatthe evidence recorded at apreliminary inquiry will be necessary
for preparing an indictment;
and thereupon such offence shall not be
triable by a Magistrate’s Court.
B. The Attorney-General is also vested
with wide powers in respect of preliminary
inquiries (also referred to as non-summary
inquiries) held by the magistrates.
In all cases which are not triablesummarily by the magistrate but triableby the High Court, a preliminary inquiry
must be held by the magistrate. It is
mandatory that preliminary inquiries
should be held in the following cases:

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS(a) Where the offence or any one of themwhere there is more than one, falls
within the list of offences set out in
the Second Schedule to the
Judicature Act. They are:(i) Offences punishable under section
296 (murder), section 297(culpable homicide not amounting
to murder), section 300 (attempted
murder), and section 264 (rape) of
the Penal Code.
(ii) Offences punishable under section
4(2) of the Offensive Weapons Act,i.e., causing injury to any personwith an offensive weapon—
offensive weapon means a bombor grenade or any other device orcontrivance made for a use or
purpose similar to that of a bombor grenade) and section 4(2) readwith section 6(1)—instigation tocommit an offence under the
O f f e n s i v e We a p o n s A c t o rconspiracy to commit such an
offence or intentionally aiding by
any act or illegal omission thecommission of such offence).
(iii) Abetment and conspiracy for theabetment or commission of theoffences described in Item (i)above and conspiracy for thecommission of the offences
described in Item (ii) above.
C. When the magistrate commits theaccused for trial to the High Court, he ismandated under section 159 of the Code of
Criminal Procedure Act to forthwithtransmit,(a) to the High Court:(i) the record of the inquiry together
with all documents and things
produced in evidence; and(ii) a copy certified under his hand ofsuch record and of such
documents; and(iii) one of the certified copies of thenotes of investigation and ofstatements furnished by theofficer in charge of the police
station,(b) to the Attorney-General:(i) a copy certified under his hand of
the record of inquiry and of all the
documents produced in evidence
together with as many of suchcertified copies as there areaccused; and(ii) one of the certified copies of thenotes of investigation and ofstatements furnished by the
Officer-in-Charge of the police
station.
D. Under section 395, it is lawful for the
Attorney-General after the receipt by himof the certified copy of the record of theinquiry, if he is of the opinion that suchaction is necessary for the properconsideration of the case by him, to call forthe original record of the inquiry (together
with any documents produced in evidence)from the court to which such record has
been forwarded, and for any productions
other than documentary evidence, from theRegistrar.
It is the duty of the Registrar of the High
Court to forward to the Attorney-General
any record or production called for.
IV. ATTORNEY-GENERAL’SFUNCTIONS VIS-À-VIS NONSUMMARY INQUIRIES
If after the receipt by him of the certified
copy of the record of the inquiry, theAttorney-General is of the opinion that
there is not sufficient evidence to warrant
a commitment for trial, or if for any reason
he is of the opinion that the accused should
be discharged from the matter of thecomplaint, information or charge, and if theaccused is in custody, from further
detention, he may by order in writing
quash the commitment made by the123

RESOURCE MATERIAL SERIES No. 53
magistrate and may direct the Registrarof the High Court to return the record of
the inquiry to the Magistrate’s Court. The
Attorney-General shall in every such caseissue to the magistrate such directions as
to the disposal of the complaint,
information or charge against the accused
as to him may seem expedient, and it isthe duty of the magistrate to comply withthe directions so issued.
If the Attorney-General is of opinion thata criminal offence is disclosed by theproceedings against the accused but thatthe evidence already taken by reason of
being in any particular or respect defective
is not sufficient to afford a foundation for a
full and proper trial, then he may make inwriting an order requiring the Magistrate’s
Court to take such further evidence as may
be specified or indicated in the order either
in the way of examining anew witnesses
who have already given their testimony orotherwise to continue the inquiry, and uponmaking such order the Attorney-Generalshall direct that the record of the inquiry
be returned to the Magistrate’s Court, andthereupon the Registrar of the High Court
shall so return the record and themagistrate shall comply with the order ofthe Attorney-General. [Section 397(1) of
the Code of Criminal Procedure Act.]
The Attorney-General may if he thinks
it necessary, direct the Magistrate to record
the evidence of any expert witness or police
officer and the Magistrate shall thencomply with such directions. [Id. section
397(2)].
A judge of the High Court and amagistrate shall whenever required inwriting by the Attorney-General, forthwithtransmit to the Attorney-General theproceedings in any criminal case in which
an inquiry or trial has been or is being held
before him and thereupon such inquiry ortrial shall be suspended in the same andthe like manner as upon adjournment
thereof. [Id. section 398(1)].

124

It shall be competent for the AttorneyGeneral upon the proceedings of any casebeing transmitted to him by a Magistrate
to give instructions with regard to theinquiry to which such proceedings relate
as he may consider requisite; andthereupon it shall he the duty of theMagistrate to carry into effect the
instructions of the Attorney-General andto conduct and conclude such inquiry inaccordance with the terms of such
instructions. [Id. section 398(2)].
Whenever a Magistrate has discharged
an accused after a Non-Summary Inquiry
and the Attorney-General is of the opinion
that such accused should not have beendischarged, the Attorney-General may
direct him to commit such accused to theHigh Court or order the Magistrate of such
Court to re-open the inquiry and may givesuch instructions with regard thereto as tohim shall appear requisite; and thereupon
it shall be the duty of such Magistrate tocarry into effect such instructions (Id.
section 399).
V. WHO MAY CONDUCT THE
PROSECUTION IN NON-SUMMARYINQUIRIES?
A person other than the AttorneyGeneral, State Counsel, or a pleader
generally or specially authorised by the
Attorney-General shall not conduct theprosecution in any case into which themagistrate of a Magistrate’s Court may beinquiring [Id. section 400(1)].
In the absence of the Attorney-General,
the Solicitor-General, State Counsel and apleader generally or specially authorisedby the Attorney-General, the Magistrate
has to conduct the prosecution, but there
is nothing to preclude the Magistrate fromavailing himself, if he considers it sodesirable, of the assistance of any pleader
or public officer in the conduct of any
inquiry [Id. section 400(2)].

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
VI. EXAMINATION OF WITNESSESAND ADMISSIBILITY OF
DOCUMENTS
In all trials either in the High Court orin the Magistrate’s Court, the witnesses forthe prosecution as well as witnesses for the
defence are first examined in chief, then if
the adverse party so desires crossexamined, and then if the party calling him
so desires re-examined (section 138 of the
Evidence Ordinance).
A person summoned to produce a
document does not become a witness by themere fact that he produces it and, therefore,cannot be cross-examined unless and until
he is called as a witness (Id. section 139).
Leading questions are not generally
permitted in examination in chief.
However, such questions may be asked incross-examination subject to the following
qualifications:(1) the question must not put into themouth of the witness the very words
which he is to echo back, and(2) the question must not assume thatfacts have been proved which havenot been proved, or that particularanswers have been given contrary to
the fact. (Id. section 143).
Oral evidence as to contents of
documents cannot be led unless the
document itself is produced. If the
document is not available, secondary
evidence may be given. (Id. section 144).
VII. WHO MAY PROSECUTE IN
TRIALS BEFORE THE
MAGISTRATES’ COURTS?
In the case of trials before a Magistrate’s
Court, the Attorney-General, the SolicitorGeneral, a State Counsel or a pleader
generally or specially authorised by the
Attorney-General shall be entitled toappear and conduct the prosecution. In theabsence of any of the officers from the
Attorney-General’s Department, thecomplainant or any officer of any
Government Department or any officer ofany local authority may appear in personor by pleader to prosecute in any case inwhich such complainant or Government
Department or local authority is interested.
In the absence of any of the officers
mentioned above, the magistrate many
permit any attorney-at-law to appear andconduct the prosecution on behalf of theperson against whom or in respect of whom
the accused is alleged to have committed
the offence. If the complaint is one filed
under paragraph (a) of subsection (1) ofsection 136 of the Code of Criminal
Procedure Act, that is a private plaint, theAttorney-General, Solicitor-General, aState Counsel or pleader generally or
specially authorised by the AttorneyGeneral shall, except where such complaint
has been filed against an officer or
employee of the State in respect of a matter
connected with or relating to the dischargeof the official duties of such officer or
employee, not have the right to appear forthe complainant without his consent.
VIII. CONDITIONS NECESSARY
FOR INITIATING PROCEEDINGS
In certain types of cases, the law
provides safeguards to persons accused ofthose offences. In these cases, theAttorney-General is required to bring his
mind to bear on the facts before aprosecution is instituted. Below are theconditions necessary for initiatingproceedings in those cases.
Section 135(1) of the Code of Criminal
Procedure Act stipulates that any Court
shall not take cognizance of,(a) any offence punishable under
sections 170 to 185 (contempts oflawful authority of public servants)of the Penal Code except with the
sanction of the Attorney-General oron the complaint of the public servant
concerned or of some public servant
to whom he is subordinate;
125

RESOURCE MATERIAL SERIES No. 53(b) any offence punishable under
sections 158, 159, 160, 161, 210, 211
and 212 of the Penal Code (offencesby or relating to public servants)
except with the previous sanction of
the Attorney-General;(c) any offence punishable under
sections 190, 193, 196, 197, 202, 203,
204, 205, 206, 207 and 223 of thePenal Code (fabricating false evidence
and perjury, etc.) when such offence
is committed in or in relation to any
proceeding in any Court except withthe previous sanction of the AttorneyGeneral or on the complaint of suchcourt;(d) any offence described in section 452
or punishable under sections 459, 463
and 464 of the Penal Code (forgery,etc.) when such offence has beencommitted by a party to any
proceeding in any Court in respect ofa document given in evidence in suchproceeding except with the previous
sanction of the Attorney-General oron the complaint of such Court;(e) any offence punishable under section
290A or section 291B of the Penal Code(offences relating to religion) unlessupon complaint made by the
Attorney-General or by some otherperson with the previous sanction of
the Attorney-General;(f) any offence falling under Chapter
XIX of the Penal Code (criminal
defamation) unless upon complaint
made with the previous sanction of
the Attorney-General by some person
aggrieved by such offence or by someother person with the like sanction;and(g) any offence punishable under section
291 A of the Penal Code (utteringwords, etc. with deliberate intent towound religious feelings) unless uponcomplaint made with the previous
sanction of the Attorney-General bysome person aggrieved by such

126

offence or by some other person withthe like sanction.
IX. SUPPLEMENTARY POWER OF
THE ATTORNEY-GENERALIn Sri Lanka like in any other country,
it is the State that is responsible for theadministration of justice in the country. All
criminal prosecutions (except private
plaints) are instituted in the name of theState and the Attorney-General as theprincipal law officer of the State has
supervisory control over all prosecutions.
He can take over any prosecution at any
time or intervene in any criminal matterat any time. Thus he can take over andoffer no evidence in any criminal
prosecution at any stage and secure theacquittal of the accused. This is usually
done where a public officer is prosecutedfor something which he has done bona fidein the execution of his official duties.
The Attorney-General also enjoys thefollowing exclusive powers:(1) The power to enter a nolle prosequi,(2) T h e p o w e r o f p a r d o n i n g a n
accomplice, and(3) The power of sanctioning an appeal
from an acquittal.
A nolle prosequi is an order under thehand of the Attorney-General stopping any
criminal case at any stage in any court oftrial without assigning any reasons. Thisis rarely resorted to and is exercised only
when public interest demands recourse tosuch cause of action. The Attorney-General
has the right to offer a conditional pardon
to an accomplice. This is done in serious
cases where there is a severe dearth ofevidence. In practice, a conditional pardon
is offered to an accomplice whose
involvement in the crime is minimal andwhose evidence covers the most number ofsuspects.
An appeal from an acquittal cannot be
preferred without the sanction of the
Attorney-General. When an application is

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
made to the Attorney-General for his
sanction, he calls for the record andexamines the evidence carefully to see
whether any substantial grounds of appeal
exist. If he is satisfied that there aresufficient grounds, he will give his sanction
to appeal.
The Attorney-General appeals against
acquittals only where there has been aserious miscarriage of justice. Appeals by
the Attorney-General against sentences are
more frequent.
The three powers of the AttorneyGeneral stated above have to be exercised
personally by him and the order should bemade under his hand. No other officer ofthe Attorney-General’s Department isentitled to make such order (Section 401of the Code of Criminal Procedure Act).
The Attorney-General exercises
supervisory powers over his Departmentin the matter of all prosecutions.
Prosecutors are not subject to thesupervisory control of any Minister or the
Cabinet or the President in the matter ofthe discharge of their official duties asprosecutors. The Minister of Justice
exercises supervision in administrative andfinancial matters only.
X. APPOINTMENT AND TRAINING
OF PUBLIC PROSECUTORS AND
THE GUARANTEE OF THEIRSTATUS
The members of the Attorney-General’s
Department are appointed by the PublicService Commission and are thus governedby the rules laid down in the
Establishments Code. Generally the statusof these officers is guaranteed as long as
they are of good behaviour while holding
office. Their services could be terminatedonly after a disciplinary inquiry is held interms of the provisions of theEstablishments Code. Unequal treatment
could give rise to the officers filing
applications in the Supreme Court alleging
violations of their fundamental rights

guaranteed under the Constitution. This
remedy is available to all public servants.
The availability of this remedy has moreor less secured the status of public
servants.
State Counsel are appointed from among
qualified attorneys-at-law. No period ofservice or training is insisted upon at thetime of recruitment. After recruitment,
they acquire on-the-job experience. In
addition senior officers of the Department
hold workshops at the end of every High
Court session for the benefit of juniorofficers. At these workshops, presentations
are made and discussions centre aroundthe difficulties each prosecutor has facedin the course of carrying out his duties.
The Department generally follows ascheme of assigning duties to junior State
Counsel with a view to assisting them inacquiring experience in a systematic way.
The pattern generally followed is as follows:
A State Counsel as he joins the
Department is sent to the Court of Appeal
with appeals from the lowest court, whichis the Magistrate’s Court. After about one
and a half years, they are posted to theHigh Courts to prosecute in criminal
matters like murder, rape, etc. After aboutanother one and a half to two years, they
are usually brought into the “miscellaneous
section” of the Head Office. In this section,
they have to deal with very complicatedcases such as bank frauds, cases involving
circumstantial evidence, etc. They are also
sent to the Court of Appeal with appeals
from High Courts. After a year or so, they
are considered for promotion to the Senior
State Counsel grade depending on theavailability of vacancies in the cadre. A
Senior State Counsel becomes asupervising officer. He supervises the workof several junior State Counsel. Usually a
Senior State Counsel appears in the Courtof Appeal and the Supreme Court inappeals from the High Courts. They
appear in High Courts to prosecute only inimportant cases. Above Senior State127

RESOURCE MATERIAL SERIES No. 53
Counsel, there are several Deputy
Solicitors-General who are also in chargeof various subjects and supervise several
State Counsel. Above them there are
Additional Solicitors-General. The mostsenior Additional Solicitor-General is incharge of the Criminal Division of the
Attorney-General’s Department.
The above-stated system of gradedassignments ensures a high degree of
quality training for the officers of the
Attorney-General’s Department.
XI. RELATIONSHIP BETWEEN THE
HIERARCHY OF THE COURTS AND
THE ATTORNEY-GENERAL’S
DEPARTMENT (OFFICIAL BAR)
Prosecutors of the Attorney-General’s
Department are eligible to be appointed tohigher grades in the Judicial Service.
Senior State Counsel are elevated to theHigh Courts, Deputy Solicitors-General to
the Court of Appeal, the Solicitor-General
to the Supreme Court, and Additional
Solicitors-General, who are also appointed
as President’s Counsel by virtue of theiroffice, could also be elevated to the Supreme
Court. The Attorney-General ranks above
the Judges of the Supreme Court and issecond only to the Chief Justice in thehierarchical order. As such, the AttorneyGeneral is elevated to the rank of Chief
Justice.
Appointments to the higher judiciary,
namely, the High Court, the Court ofAppeal and the Supreme Court, are madeby the President of the Democratic Socialist
Republic of Sri Lanka. The President has
the power to appoint suitable officers fromthe judiciary or the Attorney-General’s
Department, or a member of the unofficial
bar.
XII. PROFESSIONAL ETHICS OF
PROSECUTORSThe general code of ethics for attorneysat-law would apply to any prosecutor of the128

Attorney-General’s Department. The
prosecutor is an officer of the court and hisrole is to assist the court to dispense justice.
Thus it is not for a prosecutor to ensure aconviction at any cost, but to see that thetruth is elicited and justice is meted out. A
prosecutor is not expected to keep relevantfacts either from the court or from theaccused. If the investigation has revealed
matters which are favourable to theaccused and the accused is unaware of theexistence of such facts, it is the bounden
duty of the prosecutor to make those facts
available to the court and to the defence.
XIII. ROLE OF THE PUBLICPROSECUTOR IN ARRESTING AND
DETAINING A SUSPECT
Public prosecutors of the AttorneyGeneral’s Department do not play a role in
the arrest and detention of suspects. It is
the function of the police to arrest suspects
and produce them in court in accordancewith the law. However, it becomes
necessary sometimes to advise the policethat there is a prime facie case against thesuspect, and the police arrest the suspect
thereafter. When a person in remandcustody applies for bail to the High Court
or to the Court of Appeal, the AttorneyGeneral is consulted before bail is granted.
XIV. INTERROGATIVE AUTHORITY
AND METHODOLOGY
In criminal cases falling under the Penal
Code or other acts creating criminal
offences, such as the Offensive Weapons Act
and the Firearms Ordinance, the power ofinterrogation is entrusted to the police.
The procedure to be adopted in conducting
a criminal investigation is laid down in the
Code of Criminal Procedure Act, No. 15 of1979.
Generally an investigation iscommenced with the reception of
information relating to the commission of
an offence. If upon information, the officer

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
in charge of the police station has reason
to suspect the commission of a cognizableoffence or he apprehends a breach of thepeace, he shall either himself or throughanother officer commence theinvestigation. The interrogator is given
powers to question witnesses to theincident and arrest any suspects whosenames have transpired. It is the duty of
the investigating officer to produce thesuspects, if any, before a magistrate withina period of 24 hours, together with a reportsetting out the facts of the case and asummary of the statements of thewitnesses and the suspects. It is up to themagistrate to decide whether to grant bailto the suspect. In minor offences police
many themselves release the suspect ifthey can ensure his attendance in court if
necessary. In cases of waging war against
the State, giving or fabricating false
evidence with intent to procure conviction
for a capital offence and murder, themagistrate has no power to grant bail.
However, a suspect accused of such an
offence shall be released on bail by themagistrate if proceedings are not instituted
against him in a Magistrate’s Court or a
High Court before the expiration of a periodof three months from the date he has
surrendered to the court or is arrested,
unless the High Court, on application madeby the Attorney-General, directs otherwise.
The High Court in special circumstances
may release such person on bail before orafter the expiration of the period of threemonths. [Section 115(3) of the Code of
Criminal Procedure Act].
XIX. INSTRUCTION AND
SUPERVISION OF THE POLICE
AND CO-OPERATION BETWEEN
PUBLIC PROSECUTORS AND THE
POLICE
It is the role of the police to conduct
investigations into criminal offences. As
stated above, the Attorney-General has

wide statutory powers over prosecutions.
The Attorney-General also has the power
to give appropriate directions to the police
in the course of the investigations. It isalso open to the police to seek instructions
from the Attorney-General in regard to any
criminal offence. In practice, the police
seek the advice of the Attorney-General incomplex and difficult cases, and theAttorney-General usually exercises somedegree of supervision over theinvestigations thereafter. There are also
instances of representations being made on
behalf of suspects complaining of police
irregularities and the Attorney-General isentitled in such instances to step in andensure that investigations are done
properly and impartially. Generally thepolice and the public prosecutors co-operatewith each other to ensure that justice isdone.
XVI. EXERCISE OF DISCRETION IN
PROSECUTINGThe Attorney-General has thediscretionary power to:
A. Enter a Nolle Prosequi
The Attorney-General has the power ofstopping any prosecution in any court at
any stage without giving any reasons. This
device is resorted to only in extreme casesin order to secure justice or where it isnecessary in the interests of the public and
the State.
B. Withdraw an Indictment
At any stage of a trial in the High Court
before the return of the verdict, theAttorney-General may if he thinks fit,
inform the Court that he will not further
prosecute the accused upon the indictment
or any charge therein. Thereupon, allproceedings on such indictment or charge
as the case may be against the accusedshall be stayed and the accused shall bedischarged of and from the same.

129

RESOURCE MATERIAL SERIES No. 53
XVII. SUSPENSION OF
PROSECUTIONS
The concept of suspension ofprosecutions is not known to the legal
system of Sri Lanka. However, considering
the background of an accused, thecircumstances under which the offence wascommitted and the social implications of
any case, a suspended sentence may be
given by a judge. When a suspended
sentence is imposed, the suspect should beof good behaviour during the operational
period of the sentence. If he commits
another offence during the operational
period and is convicted by a court of law,
the suspended sentence would begin tooperate after the sentence imposed for thesubsequent offence.
XVIII. PLEA BARGAINING AND
SENTENCE
Plea bargaining is an accepted practicein Sri Lankan courts. For example, wherea suspect has been indicted for murder andhe wishes to plead guilty to the lesser
offence of culpable homicide not amounting
to murder, the court may accept such plea
with the consent of the prosecutor, provided
sufficient grounds exist. The trial judge
has the sole discretion to impose any
sentence laid down by law. Sentencebargaining is not permitted.
However, a prosecutor is entitled to place
before the court facts relevant todetermining an adequate sentence. It is
open to the Attorney-General to move inrevision of any sentence passed by any
judge. In recent times, the AttorneyGeneral has resorted to this practice very
successfully in several cases.
XIX. PROOF OF CRIMINAL FACTS
It is an accepted principle of law in Sri
Lanka that an accused is presumed
innocent until proven guilty. This isenshrined in Article 13(5) of the130

Constitution as well. The standard
required is proof beyond reasonable doubt.
It is the duty of the prosecutor to prove thecase beyond reasonable doubt. If theevidence adduced by the prosecution falls
below this standard, the accused is entitledto be acquitted.
XX. CO-OPERATION FOR A SPEEDYTRIAL
The subject of law delays has been the
topic of discussion in Sri Lanka for many
years. The prosecutor and the police
always work towards ensuring a speedy
trial, as inordinate delay is always
detrimental to the prosecution. The
prosecutors also make it a point not tomake applications for postponements
unless they are compelled to do so. Trial
dates are fixed in consultation with counsel
for the prosecution as well as counsel forthe defence, to suit the convenience of thecourt.
XXI. SUPERVISION OF THE FAIRAPPLICATION OF THE LAW
It is the duty of the prosecuting counsel
to see that the law is applied correctly by
the trial judge. Whenever a trial judge errs,
the prosecutor is entitled to point out such
errors. The Attorney-General is entitledto move in revision to correct wrong interim
orders made in the course of a trial. The
Attorney-General is also entitled to appeal
from wrongful or unreasonable acquittal.
State prosecutors are required to submit
all files relating to concluded cases, to thesupervising officer to enable him to see
whether an appeal should be lodged orwhether revisionary action should betaken.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

THE THAI PROSECUTORS AND INTERNATIONAL
COOPERATION IN COMBATING TRANSNATIONAL CRIME
Dr. Kanit Nanakorn*
I. INTRODUCTION
For this issue, I will lecture on theprosecutors’ role in providing the mutual
legal assistance and then would move on
further to the extradition and the restraint
and forfeiture of proceeds of crime.
II. MUTUAL ASSISTANCE IN
LEGAL MATTERS
According to the Thailand-U.S. Treatyof 1986, which is the first of its kind in
Thailand, Central Authorities are
established to have direct responsibility inproviding and requesting assistance incriminal matters in the two countries
without having to go through a diplomaticchannel. For Thailand, the Central
Authority in accordance with the Mutual
Assistance Act implementing the treaty is
the Attorney General through the Office ofInternational Affairs. The treaties on
Mutual Assistance in Criminal Matters
between Thailand and Canada, andbetween Thailand and Great Britain andNorthern Ireland also contain similar
provisions. One main function of the
Attorney General on behalf of the Central
Authority is to be the coordinator inproviding assistance to a foreign state or
seeking assistance from a foreign state. All
diplomatic formalities are deliberately set
aside so as to facilitate and expedite theprocess of request consideration and also
to lessen excessive bureaucracy.
The reason why the Attorney General asa representative of the Prosecution Serviceof Thailand is nominated as the Central* Former Attorney General of Thailand; Professor of
Law, Thammasat University, Thailand.

Authority, rather than other heads ofcriminal justice agencies (namely either the
Minister of Interior or the Director-Generalof the Police Department, or the Supreme
Court President) is that the scope of thetypes of assistance as stipulated in theTreaties and the Mutual Assistance Act
corresponds with the current
responsibilities of the prosecutors under
the supervision of the Attorney General.
Such types of assistance include but are
not limited to the following:(1) taking the testimony and statementsof persons;(2) providing documents, records andevidence;(3) serving documents;(4) executing request for searches andseizures;(5) transferring persons in custody fortestimonial purposes;(6) locating persons;(7) initiating proceedings upon request;and(8) initiating forfeiture proceedings.
To compare with the other duties ofprosecutors, even though prosecutors canneither initiate a criminal charge nor
investigate a case, if they receive the fileof inquiry submitted to them by the policeand find it incomplete, they still can direct
the police to conduct additional
investigation. After acquiring the complete
dossier, the prosecutors will then make adecision as to whether to initiate the court
proceedings. Structurally viewed,
prosecutors practically act as middlemenbetween the factions of the police and of
the court, defense counsel and corrections.
Wi t h i t s q u a s i - j u d i c i a l n a t u r e o f
responsibility plus such a unique role, the131

RESOURCE MATERIAL SERIES No. 53
Office of the Attorney General therefore
gains a superior position in coordinatingwith all criminal justice agencies as wellas other bodies involved. As a result, theAttorney General is deemed most wellsuited to perform as the Central Authority.
By virtue of the Mutual Assistance Act,
the Central Authority has the following
authority and functions:(1) to receive the request for assistancefrom the requesting State andtransmit it to the Competent
Authorities;(2) to receive the request seeking forassistance presented by the agencyof the Thai government and deliver
it to the requested State;(3) to consider and determine whether toprovide or seek assistance;(4) t o f o l l o w a n d e x p e d i t e t h eperformance of the Competent
Authorities in providing assistance toa foreign State for the purpose of
expeditious conclusion;(5) t o i s s u e r e g u l a t i o n s a n dannouncement for the
implementation of the Mutual
Assistance Act; and(6) to carry out other acts necessary forthe success of providing or seeking
assistance under the Act.
Upon receipt of a request for assistancefrom a foreign State, the Central Authority
will take into account and determine
whether such request is eligible for theproviding of assistance under the Mutual
Assistance Act and has followed the process
correctly as well as accompanied by all
appropriate supporting documents. If so,
the Central Authority will submit the said
request to the Competent Authorities forfurther execution. However, if not, theCentral Authority will refuse to provide
assistance and notify the requesting Statethe reasons thereof, or indicate therequired conditions, or the causes of
impossibility to execute the request. If the132

Central Authority is of the opinion that theexecution of the request may interfere with
the investigation, inquiry, prosecution orother criminal proceedings pending its
handling in Thailand, he may postpone theexecution or may execute it under certain
conditions set by him and notify therequesting State about that. A
determination of the Central Authority
with regard to the providing of assistancewill be final, unless otherwise altered by
the Prime Minister.
The providing of assistance will be
subject to the following conditions:(1) assistance may be provided eventhough there exists no mutual
assistance treaty between Thailand
and the requesting State, provided
that such State commits to assist
Thailand under the similar manner
when requested;(2) the conduct which is the basis for theassistance requested must be
punishable under Thai law unless
Thailand and the requesting country
have a mutual assistance treaty andthe treaty provides otherwise;(3) the request may be rejected if it willaffect national sovereignty, security
or other crucial public interests ofThailand, or relate to a politicaloffense; and(4) the providing of assistance will not
be concerned with a military offense.
The Central Authority will transmit therequest from a foreign State to thefollowing Competent Authorities for
execution:(1) requests for taking statement of
persons, or providing documents,
articles and evidence out of court, orserving documents, or searching, orseizing documents and articles, or
locating persons will be forwarded to
the Director General of the Police
Department;

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS(2) requests for taking testimony of
persons and witnesses, or adducing
documents and evidence in court will
be dispatched to the court;(3) requests for transferring persons incustody for testimonial purposes willbe transmitted to the Director
General of the Correctional
Department; and(4) requests for initiating criminal
proceedings will be conveyed to the
Director General of the Police
Department and the Chief Public
Prosecutor for Litigation.
Upon obtaining the said request, theCompetent Authorities will execute it and,after completion, submit a report together
with all documents and articles concernedto the Central Authority, who will thennotify the result thereof as well as deliver
such documents and articles to therequesting State.
It should be noted that with regard toassistance in forfeiting the fruits andinstrumentalities of crime located in
Thailand, after the court having
jurisdiction over the property is conveyed
the request, it is empowered to confiscate
the property if the final judgment from aforeign court allows such action and theproperty is forfeitable under Thai law. In
order to solve the problem concerning
jurisdiction and competence of the court,
the forfeiture is deemed effective, eventhough the cause of such forfeiture may nothappen in Thailand. A request for legal
assistance will normally be executed inaccordance with Thai law. Nonetheless, theThai government, with the spirit ofcooperation, aspires to follow the methodof execution specified in the request insofar
as it is not incompatible with domestic
laws.

III. EXTRADITION
The issue of prosecutors’ role inproviding extradition is another aspect ofinternational cooperation in criminal
matters.
As stated earlier, the Extradition Act isonly a general rule of extradition, and it
will be applicable unless the treaty to which
Thailand is a party provides otherwise.
The Act requires that the crime committed
be illegal and punishable under Thai law(double criminality rule); not be a politicaloffense; and the penalty for the offense
must be at least one year’s imprisonment.
The request for extradition must be
accompanied by:(1) in the case of a person having been
convicted of a crime, a duly
authenticated copy of the judgmentof the court which tried him; and(2) in case of a person charged with acrime, a warrant of arrest issued by
the Competent Authorities of therequesting country, or a duly
authenticated copy thereof.
Regarding the process of providing
extradition, the request thereof, as opposedto the request for mutual legal assistance,
must be submitted through the diplomaticchannel. After that, unless the Thaigovernment decides otherwise, the request
together with the accompanying
documents will be transmitted to the
Ministry of Interior, which may order theaccused to be arrested or may apply to thecourt for a warrant of arrest. Further, therequest and the accompanying documents
will be conveyed to the Office of the
Attorney General which, under the
extradition scheme, will be responsible forthe execution of the request by working
with the police and the court. The
prosecutors in the Office of International
Affairs will then demand of the court ofcompetent jurisdiction the warrant ofarrest. In the case that the accused has
been arrested, the prosecutors without

133

RESOURCE MATERIAL SERIES No. 53
unnecessary delay will bring the casebefore such court and a preliminary
investigation will be made in accordanceas far as possible with the Thai criminal
procedure law.
The court may order a remand from time
to time on the request of either party andfor good and sufficient reasons, but the
court should not allow bail in these cases.
It is worth stressing that the prosecutors,
and representatives of the requested Thaigovernment, associate with the court
hearings merely to establish, by means of
witness testimony or depositions, that:(1) the identity of the accused matcheswith the person wanted;(2) there is sufficient evidence against
him to commit him for trial, if theoffense had been committed in
Thailand; and(3) the offense is extraditable and is not
one of a political character.
Under the general extradition rule, theprosecutors are not required to prove up to
the extent that the accused ever committed
the offense as stated in the request. In
reverse, the accused is not permitted to
rebut the prosecutors’ affirmations except
upon the following points:(1) that he is not the person wanted;(2) that the offense is not extraditable
or is of a political character;(3) that his extradition is in fact being
asked for with a view to punishing
him for an offense of a politicalcharacter; and(4) his nationality.
If the court is satisfied with theestablishments, it will make an orderauthorizing the accused to be detained witha view to being surrendered. The accused
will not be sent out of Thailand for fifteendays and within that period, he is granted
a right to appeal to the Court of Appeals,
whose decision upon all questions both offact and of law will be final.
Notwithstanding, if the court is not134

satisfied with the evidence presented, it
will order the accused to be discharged at
the end of forty-eight hours after reading
its decision unless within that period theprosecutors notify the court of an intention
to appeal. The prosecutors likewise areentitled to file an appeal within fifteen days
and the court will order the accused to bedetained pending the hearing of suchappeal. If the accused has not beensurrendered within three months from thedate when the order of the court becomes
final or within such further time as thecourt for sufficient reason direct, theaccused will be set at liberty.
As the Extradition Act is only a generalrule of extradition, it will be applicable
unless the treaty to which Thailand is aparty provides otherwise. For this reason,
the practice on extradition in Thailand mayvary from one country to the others. For
instance, while the Extradition Act allows
the extradition of nationals, the treaties
with the United States, the Great Britain,
Indonesia, and the Philippines subject theextradition thereof to the discretion of
executive branch, the treaty with Belgium
explicitly prohibits it. Such phenomenon
will inevitably make extradition procedure
too complicated and difficult forpractitioners, including prosecutors.
Additionally, the Act is now obsolete inthat it lacks simplified extradition in cases
where the accused agrees to be extradited
without the extradition proceedings. Also,
handling requests through the diplomaticchannel is very time-consuming and a strictobedience to the principle of double
criminality is rather impractical for
Thailand, which still lacks a number oflegislation to combat transnational crime,for example an anti-money laundering law.
Thus, it is very likely that there will be
more extradition treaties in the future
because procedures adopted by negotiating
parties will normally be better and provide
more benefit to the parties than those foundin the Extradition Act. Realizing that, the107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
Thai government has, in March 1997, set
up the committee for the reform of theextradition law.
IV. ASSET FORFEITURE
According to the 1991 Act on Measures
for the Suppression of Narcotics Offense,
the Properties Examination Committee
has been established for the administrationof asset forfeiture procedure. The
Committee consists of high-ranking
government officials involved in theprocess, including the Attorney General.
The Committee has the power to issue anorder for examination of the alleged
offender ’s property where there arereasonable grounds for suspicion that it is
the proceeds of a drug offense. In addition,
the Committee in such a situation also has
the power to make a seizure or restraining
order thereof. In carrying out the executionof the law, the Committee has appointed a
sub-committee called the Sub-Committee
Attached to the Properties Examination
Committee to take into consideration all
information and evidence in connection
with the property, to give opinion to theCommittee, and to supervise and control
the competent officials to carry out thedesignated task. Prosecutors are also
installed in this sub-committee.
I will give a brief overview on theforfeiture procedure under the Act. Whena significant drug trafficker is charged witha drug offense and becomes the alleged
offender, the Secretary of the Narcotics
Control Board (NCB), as a member and asecretary of the Committee, will take into
consideration whether there are reasonablegrounds for suspicion that any property of
the alleged offender is the proceeds of adrug offense. If yes, the Secretary-General
will propose examination by the SubCommittee which, if it agrees, will give its
opinion to the Committee for consideration.
The Committee will then make an orderfor examination of property. In addition, if

there are reasonable grounds to believethat the property of the alleged offender islikely to be transferred, removed orconcealed, the Committee will give aprovisional order for seizure or restraintof property.
The Committee will contemplate all
information, evidence and documents inconnect with the property from thecompetent officials and the owner ofproperty, if any, before making a decision
concerning the property. If the Committee
decides that such property is the proceedsof a drug offense, the seizure andrestraining order will be issued. Its
decision together with documents andevidence concerned will be submitted to theprosecutors. However if the Committee
decides otherwise, the property seized or
restrained temporarily will be returned tothe owner. When prosecution has been
instituted against the alleged offender, theprosecutors will, after agreeing with theCommittee that the property of the alleged
offender is believed to be the proceeds of adrug offense, make an application with thecourt for a confiscation order. If there arecircumstances that the defendant or theexaminee has carried on the commissionof an offense, it shall be presumed that theproperty possessed or derived by him
beyond the living status or his capability
for occupation is the proceeds of a drug
offense. In cases where there is a final nonprosecution order or where there is a final
judgment dismissing the charge against
the alleged offender or the accused, theproperty seized or restrained by theCommittee will be returned to thedefendant or the owner of property.
Since its first enforcement in April 1992
to the end of July 1997, there have been a
total of 365 alleged offenders whose
property has been examined by order of theCommittee, and the total value of property
temporarily seized or restrained isapproximately US$19.8 million. Out ofthese, there is property worth around135

RESOURCE MATERIAL SERIES No. 53
US$18.5 million of 236 alleged offenders
that the Committee considered to be theproceeds of drug offenses. Up to now, thecourt has passed judgment for theconfiscation of 13 cases, the total value of
which is around US$260,000.
Even though the asset forfeiture
measure is one of the most powerful tools
for fighting organized crime, its applicationin Thailand is still far from satisfactory.
First, the measure is only available in drug
offenses. Moreover, unlike the civil
forfeiture procedure of the United States,
the confiscation of property under the law
is conviction-based. This means that the
government needs to prove that the alleged
offender is guilty before the court will handdown the confiscation order. If the court
acquits the defendant, then the seizure or
restrait of property will terminate. In
addition, the lack of understanding of thisnew concept of law among judicial officers
is also another important reason why suchmeasure has not been effectively utilized.
Lastly, Thailand still lacks an anti-money
laundering law to penalize those who assist
in the transfer or concealment of theproceeds of drug offenses. This has madeit more difficult for the government to trackdown the proceeds of crime that have beentransferred or concealed to avoid detection.
V. CONCLUSION
As international criminals, unlike law
enforcement officials, are not subject to any
limitations in their cross-border operations,
it is, therefore, vital that we join hands in
an attempt to increase cooperation andcoordination. As there is a rapid increasein transnational organized crime, there isa great need for a collective response by
the international community and greater
cooperation and coordination among
responsible officials in order to fight more
effectively. From my point of view, I am ofthe opinion that more international
training and conference among criminal

136

justice officials, like this UNAFEIInternational Training Course, should be
encouraged so that those who are in thesame career network will have an
opportunity to share experiences and to get
acquainted with each other and with thelegal system of other countries. This will
not only enhance smooth cooperation, butwill also improve the standard of criminal
justice and the efficiency in law
enforcement in the respective countries.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

THE ROLE OF THE PROSECUTOR IN THE AMERICAN
FEDERAL CRIMINAL JUSTICE SYSTEM
Nora M. Manella*
I. AN OVERVIEW OF PREINDICTMENT, INDICTMENT AND
TRIAL PROCEEDINGS
A. Pre-indictment Proceedings
Prior to the return of an indictment by aFederal Grand Jury, a defendant may bearraigned and held pursuant to the filingof a criminal complaint issued by a UnitedStates Magistrate Judge. The complaint isa statement of the essential facts
constituting the charge. It must be
supported by an affidavit sworn to underoath by a federal law enforcement officer.
The affidavit must set forth facts toestablish “probable cause;” that is,reasonable cause to believe that a crime
has been committed and that the defendantcommitted the crime. The affidavit mustbe sufficiently detailed to establish thesource of the officer’s information and thereliability of the information.
A complaint may be issued by aMagistrate Judge before or after adefendant has been arrested. If thecomplaint is issued before the defendant
has been arrested, the Magistrate Judgealso issues an arrest warrant authorizing
the arrest of the defendant. A federal officer
may arrest a defendant for any federal
offense pursuant to an arrest warrant
issued by a Magistrate Judge. The officer
may also arrest a defendant for a felony
offense without an arrest warrant if theofficer has probable cause to believe thedefendant committed the felony offense.
However, the officer may arrest adefendant for a misdemeanor offense* United States Attorney Central District ofCalifornia, United States.

without a warrant only if the misdemeanor
offense was committed in the officer’s
presence.
A defendant who has been arrested fora federal offense must be arraigned before
the nearest Magistrate Judge without
unnecessary delay, usually the same day
as the arrest and no more than 48 hours
after the arrest. At the initial arraignment,
the defendant is informed by theMagistrate Judge of the charges and of hisor her right to counsel. If the defendant isunable to afford counsel, the Magistrate
Judge appoints counsel paid by thegovernment to represent the defendant.
At the initial appearance, the Magistrate
Judge sets bail for the defendant’s releasefrom custody while the criminal
proceedings are pending. The Magistrate
Judge determines the amount of bailnecessary to secure the defendant’s
appearance at future court appearances,including trial and sentencing if the
defendant is convicted, taking into
consideration the danger to the community
and the likelihood the defendant will
return to court if released. The Magistrate
Judge can order the defendant to post an
appearance bond—which is a promise by
the defendant to pay a specified amount if
he or she fails to appear in court—or asecured bond, which is cash or property
that may be forfeited to the government if
the defendant fails to appear. A defendant
may be detained pending criminal
proceedings, if the Magistrate Judgedetermines that no amount of money orother conditions can assure the defendant’s
return to court or can adequately protect
the safety of the community if the
defendant is at large.

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A defendant is entitled to a preliminary
hearing before a Magistrate Judge todetermine if there is probable cause tocontinue to charge the defendant. The
preliminary hearing must be held within
1 0 d a y s o f t h e d e f e n d a n t ’s i n i t i a larraignment if the defendant is still incustody, or within 20 days if the defendant
has posted bail and been released from
custody. The defendant is not entitled to apreliminary hearing if an indictment isreturned by a grand jury prior to the dateset for the preliminary hearing. Because
under the Fifth Amendment of the UnitedStates Constitution, all serious federal
crimes must be charged by an indictment.
Indictments are almost always returned
prior to the date set for the preliminary
hearing. As a result, preliminary hearings
are rarely held in federal court.

Sentencing Guidelines that the judge
determines to be appropriate. Sentencing
bargaining may also result in a firm
agreement by the government and thedefendant as to what the appropriate
sentence should be. In this circumstance,
the judge must either impose the agreedupon sentence or reject the plea agreement
entirely. Finally, sentencing bargaining
may result in an agreement by the
defendant and the government regarding
certain factors relevant to sentencing—such as the defendant’s role in the offenseor the amount of the monetary loss—that
the judge will consider in determining theappropriate sentencing under the Federal
Sentencing Guidelines. The judge is not,however, required to agree to these factors
and may make his or her independent
determination of the sentencing factors.

B. Plea Bargaining
Under the Federal Rules of Criminal
Procedure, the government and thedefendant can engage in negotiations,sometimes referred to a “plea bargaining,”
to resolve criminal charges that may be
filed or are pending against the defendant.
The rules expressly prohibit the trial judge
from participating in these negotiations.
The rules permit the parties to negotiate
over the charges to which the defendant
will plead guilty, known as “charge
bargaining,” and the sentence that will be
imposed, referred to as “sentencing
bargaining.” Charge bargaining may
involve negotiations over what specificcharges the government will file, thereduction of pending charges to lesser
charges, or the dismissal of some of thepending charges. The defendant thenpleads guilty to the agreed upon charges.
Sentencing bargaining may result in anagreement by the government torecommend a particular sentence. This
recommendation is not, however, bindingon the judge, who may impose any lawful
sentence consistent with the Federal

C. Post-indictment Proceedings
1. Post-indictment Arraignment
Following an indictment, the defendantis arraigned before a United States District
Judge. At the arraignment, the defendant
enters a plea, usually “Not Guilty” unlessthere is a pre-indictment plea bargain
whereby the defendant has agreed to plead
guilty. The judge also appoints counsel paid
for by the government if the defendant is
not already represented by counsel andcannot afford counsel. The judge also sets
the case for trial, usually within 70 days ofthe earlier of the date of the indictment or
the defendant’s first appearance before ajudge. The judge may also set a schedule
for pre-trial motions.

138

2. Pre-trial Motions
Prior to trial, the parties, usually the
defendant, may file certain motions seeking
relief from the judge. The defendant may
file a motion seeking discovery from thegovernment’s files, including informationthat tends to exculpate the defendant, any
statements the government contends thedefendant made about the offense,

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documents and items the government
intends to introduce into evidence at trial,
reports of examinations or tests thegovernment intends to introduce at trial,
information about the government’s expert
witnesses and informants, and statementsof the government’s witnesses. The
government may also file a motion seeking
reciprocal discovery of the defendant’s
evidence, including reports, names ofexperts, examination results, and witness
statements. The government may also
require the defendant to give notice of an
intention to offer an alibi defense, a defense
of insanity, or any other defense based upon
the defendant’s mental condition.
The defendant may also file motions
prior to trial seeking to have the indictment
dismissed. These include motions to
dismiss because the court lacks
jurisdiction, the indictment fails to allege
an offense, the prosecutors engaged in
misconduct before the grand jury, theprosecutors selected the defendant for
prosecution based upon an impermissible
reason, such as the defendant’s race,
religion, or ethnic origins, the prosecutor
filed the charges in retaliation for the
defendant’s exercise of a constitutionalright, the prosecutor waited too long before
filing the charges, or the court took too longto bring the case to trial after the defendant
was charged.
The defendant may also file motions
prior to trial seeking to have thegovernment’s evidence “suppressed,” thatis, to bar the government from introducing
certain evidence at the trial. Thus, adefendant may seek to suppress documents
and tangible items based upon an illegal
search or seizure, evidence obtained by anillegal wiretap, or the defendant’s
statements to a law enforcement officer if
the officer failed to advise the defendant of
his or her right to remain silent and to
consult with an attorney after beingarrested.

Both the government and the defendant
may file “in limine” motions prior to trial
seeking to preclude the other side fromintroducing certain evidence on the
grounds that it is not relevant, is unduly
prejudicial, or is otherwise inadmissible
under the Federal Rules of Evidence. The
government may seek to preclude a
defendant from offering evidence of“duress” unless the evidence to be offeredby the defense meets the legal standardsof a duress defense. A defendant may seek
to preclude introduction by thegovernment of the defendant’s priorcriminal convictions on the grounds thatsuch evidence would be unduly prejudicial.
3. Trial Proceedings
Every defendant has a right to a speedy
and public trial under the Sixth
Amendment to the United States
Constitution and the Federal Speedy Trial
Act. Based upon the length of the delay
between the filing of the charges and thestart of the trial, the reasons for the delay,
and the prejudice to the defendantresulting from the delay, the District Judge
may dismiss the charges against thedefendant with prejudice for a violation of
the Sixth Amendment’s right to a speedy
trial. The judge may also dismiss the
charges with or without prejudice under
the Speedy Trial Act if the trial is not held
within the earlier of 70 days from theindictment or the defendant’s initial
appearance, unless the court finds that thecase is complex, motions need to beresolved, or the attorneys need additionaltime to prepare for the trial.
The questioning of jurors to determine
if they are qualified to sit as jurors in aparticular case is known as “voir dire.” In
federal court, the judge usually conducts
the voir dire, although the judge may
permit the prosecutor and defense counsel
to question the jurors. Both the prosecution
and defense may challenge a prospective
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evidence that the juror is biased in favor of
one side or the other. Each side has anunlimited number of challenges for cause.
Each side also has a limited number of“peremptory” challenges which a party may
exercise to excuse a juror for any reason.
The reason need not be stated in open
court. However, no party may exercise aperemptory challenge to excuse a juror
based upon impermissible discrimination,such as the juror’s race, religion, national
origins, or gender.
The trial begins with the prosecutor
making an “opening statement”—asummary of what the prosecutor expects
the evidence to prove. The defense attorney
may also make an opening statement
following the prosecutor’s, or wait until theprosecution completes its case before
making an opening statement. The judge
commonly advises the jury that opening
statements are not evidence, but merely
the attorneys’ opportunity to summarize
what they expect the evidence will show.
The prosecution, which has the burdenof proving the defendant’s guilt beyond areasonable doubt, presents its case first.
The prosecution may present witnesses
with knowledge of the crime as well as
documents and tangible evidence. The
prosecution may also offer opinion
testimony from experts qualified in
specialized areas such as fingerprint
analysis and forensic accountants. The
prosecution may also offer statements
made by the defendant to law enforcement
officers, provided that the judge finds thatthe statements were voluntarily made after
the defendant had been advised of his or
her rights to remain silent and to consult
with an attorney. Each of the prosecution’s
witnesses is subject to cross-examinationby the defense attorney, who may seek toestablish that the witnesses are biased orhonestly mistaken, or may seek to elicit
f r o m t h e g o v e r n m e n t ’s w i t n e s s e s
information helpful to the defense.

140

After the prosecution presents its
evidence, the defendant may offer evidenceon his or her behalf. However, thedefendant has no obligation to present
evidence or to testify at trial, and theprosecutor cannot comment to the jury on
the defendant’s failure to present evidenceor to testify. Following the defendant’spresentation of evidence, the prosecution
may offer additional evidence to rebut any
evidence offered by the defendant.
Following the presentation of theevidence, the prosecutor and defense
attorney give their “closing arguments”.
Because the prosecution has the burden of
proof, the prosecution gives an “opening
summation” before and a “rebuttal
argument” after the defense attorney’s
closing argument. Although closing
arguments, like opening statements, arenot evidence, both sides have greater
leeway in closing arguments to argue to thejury that the evidence previously
introduced in the trial supports theirrespective positions.
Following the lawyers’ closing
arguments, the judge instructs the jury on
the law, and the jury retires to deliberate
and render its verdict. Jury instructions
are submitted by the parties to the court,
and usually agreed upon before the judge
reads them to the jury. Any disputes as tothe applicable law are resolved by thejudge. For most federal offenses, there arestandard jury instructions explaining theelements of the offense, though parties
often submit instructions tailored to thefacts of a particular case to facilitate thejurors’ application of the law to those facts.
Any questions the jurors may have about
the meaning of the instructions are
directed to the judge. The role of the jury
is to decide the facts and to apply the law—as instructed by the judge—to those facts.
4. Jury’s Return of Verdicts
A jury’s guilty verdict in a federal
criminal trial must be unanimous, i.e., all107TH INTERNATIONAL TRAINING COURSE
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twelve jurors must agree that thedefendant is guilty of the crime charged
beyond a reasonable doubt. If even a single
juror is not convinced of the defendant’s
guilt, no guilty verdict can be returned.
Similarly, if only a single juror is convincedof the defendant’s guilt beyond a reasonable
doubt, but the remaining 11 jurors are not,no verdict may be returned. The failure ofa jury to reach a unanimous decision iscommonly called a “hung jury.” Where thejury fails to reach a unanimous verdict ofguilty or not guilty, the government may
retry the case.
If the defendant is acquitted at trial—i.e., all 12 jurors agree the government has
failed to prove the defendant’s guilt beyonda reasonable doubt—the defendant isreleased, and the government may notbring the same charges again. If the
defendant is found guilty by all 12 jurors,
he or she may appeal the conviction to the
U.S. Court of Appeals in the district where
the case was tried.
II. PROSECUTORIAL
DECISION-MAKING
A. Whom to Charge
1. Charging Individuals
Federal prosecutors seek to charge theleaders and organizers of criminal activity
whenever possible. Stated otherwise,
prosecutors seek to prosecute the ultimate
source of the criminal activity, whether it
is a corporate president who initiates orapproves fraudulent activity for the benefitof the corporation, or the head of a narcotics
manufacturing and distribution
organization. This fundamental principle
guides prosecutive decisions regarding
whom to charge, what to charge, and towhom to grant immunity.
In a corporate or business context,
federal prosecutors seek to identify andcharge managers who have knowledge ofthe criminal conduct and discretionary
authority over the subject matter of thecriminal conduct or supervisory

responsibility over the employees engaged
in the criminal conduct. Mere knowledgeof the illegal activity is not sufficient towarrant the filing of criminal charges; thecorporate officer must have either directed
the illegal activity or had the authority or
responsibility to prevent it. Ultimately,federal prosecutors seek to hold criminallyresponsible the highest level managers
with both knowledge of and authority overthe criminal conduct.
In pursuit of these managers,
prosecutors seek the cooperation of lower
level individuals or employees who haveknowledge of illegal activity or participate
in or carry out the criminal conduct. With
respect to these employees who havecriminal culpability, such cooperation
usually results from plea agreements or
grants of immunity from prosecution.
Lower-level employees who are prosecutedfor their criminal activities may enter intoplea agreements whereby they agree toplead guilty to certain charges andc o o p e r a t e w i t h t h e g o v e r n m e n t ’s
investigation in exchange for immunityfrom further prosecution or favorable
sentencing recommendations by theprosecutor. On occasion, the employee
agrees to cooperate in exchange for suchconsideration at sentencing after theemployee has been prosecuted andconvicted at trial.
Based upon the nature of the employee’s
knowledge and information about thecriminal conduct and the nature and scopeof his or her own criminal conduct,prosecutors may decide to provide theemployee with immunity rather than filecriminal charges against the employee. The
immunity can be in the form of anagreement not to prosecute the employee
for certain criminal conduct. Thisi m m u n i t y, w h i c h i s k n o w n a s“transactional immunity,” is generally
disfavored by federal prosecutors.
Accordingly, prosecutors usually provide
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the government from using the employee’s
statements against the employee if theemployee is ever prosecuted (“direct” use
immunity). Significantly, “use” immunity
also bars the prosecution from using theemployee’s statements to develop evidence
against the employee (“derivative” use
immunity). “Use” immunity does not,however, bar the prosecution fromintroducing the statements into evidence
against the employee if the employee isever prosecuted for making a false
statement or for perjury based upon the
immunized statement. Because the courts
have placed a high burden on theprosecution to prove that evidence against
a defendant who has received use
immunity was not derived, directly or
indirectly, from the defendant’s statements,“use” immunity is almost always
tantamount to “transactional” immunityf r o m p r o s e c u t i o n . F u r t h e r, s u c hlimitations on prosecutorial use of thestatements apply to any future prosecution,
not just one based upon the subject matterof the investigation that resulted in the“use” immunity. Accordingly, defense
attorneys almost always recommend that
their clients accept “use” immunity in lieu
of transactional immunity.
“Use” immunity can be provided
informally though a letter agreement orformally through a court order. Informal“use” immunity generally results fromnegotiations between the prosecutor andthe employee’s counsel, in which theemployee’s counsel initially “proffers”(orally or in writing) what the employees
could testify to if provided immunity. If
the prosecutor indicates a willingness toprovide immunity based upon the proffer,the prosecutor may then interview theemployee, subject to an agreement that theprosecutor will not directly use theinterview against the employee, before
deciding whether to enter into a letter
agreement providing for full use immunity.

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If a lower level employee is unwilling toaccept informal use immunity, theprosecutor can compel the employee totestify by obtaining statutory use
immunity. Title 18 of the United States
Code § 6001, et. seq., provides that theUnited States Attorney, with the approvalof the Assistant Attorney General in chargeof the Criminal Division of the Departmentof Justice, can obtain an order from aDistrict Court Judge compelling theemployee to testify. As a result of the“compulsion” order, the employee isafforded full use immunity (direct andderivative) for his or her testimony. If theemployee refuses to testify after having
been compelled by a court order, theemployee may be held in contempt by the
court. This may subject the employee to
imprisonment or a fine.
2. Charging Corporations
U n d e r f e d e r a l c r i m i n a l l a w, a
corporation may be held criminally liable
for any acts of its officers, employees, or
agents done in the course and scope of theiremployment that are for the benefit of thecorporation. Under this broad doctrine ofcorporate liability, the corporation may beheld liable even if the acts are contrary to
the corporation’s policies. For example, a
corporation may be held liable for theactions of an employee who illegally
disposes of hazardous waste that thecorporation must dispose of, even if thecorporation specifically requires its
employees to comply with all applicablelaws and regulations in disposing of thewaste. The theory is that the employee isintending to benefit the corporation
because the corporation needs to disposeof the waste.
In prosecuting a corporation, thegovernment need not prove that a single
corporate officer or agent had the required
knowledge and intent to violate the law.
Rather, the prosecution can rely on the“collective knowledge” of the officers and107TH INTERNATIONAL TRAINING COURSE
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employees. This collective knowledge
doctrine is useful when the corporate
responsibility is divided among several
individuals, such that no one individual has
knowledge of all the relevant facts and law.
For example, certain corporate employees
may be responsible for testing products
being supplied to the government, whileother employees may be responsible forcertifying to the government that all therequired tests were performed. If the latter
were unaware that the former had failed
to perform the required tests, they may
have falsely certified that the tests had
been performed, but lacked the knowledge
and intent to commit a criminal violation.
Similarly, if the former did not know thatcertifications would be made claiming thetests had been performed, they too would
lack the necessary knowledge and intent
to be guilty of a criminal offense. Under
these circumstances, no individual
employees would be criminally responsible,
but a criminal violation would nonethelesshave occurred when the employees of thecorporation submitted a certification to thegovernment falsely representing that therequired tests had been performed.
B. What to Charge
Federal prosecutors usually seek to filethe most serious readily provable charge
determined by the nature of the charge andthe sentencing range for the particularcharge. Prosecutors also seek to file charges
that encompass the scope of the defendant’s
criminal conduct. Thus, they include
multiple similar counts for identical orsimilar crimes committed by the defendant,such as multiple bank robbery charges fora series of robberies. They also include
different offenses based upon the same act
or transaction or series of acts ortransactions that are parts of a common
scheme or plan. For example, anindictment may include charges such as
securities fraud, money laundering, andfalse statements to an agency of thegovernment where defendants engaged ina scheme to defraud buyers of securities
based upon the filing of false reports with
the Securities and Exchange Commission.
Conspiracy charges are often filed toencompass the full scope of the criminal
activity where two or more individuals
agreed to commit offenses against theUnited States or to defraud the UnitedStates, and one or more of these individuals
committed an overt act in furtherance ofthe conspiracy. Prosecutors may also filecharges under the Racketeering Influenced
Corrupt Organizations (“RICO”) Act, 18
U.S.C. § 1961, et. seq., where thedefendants conducted the affairs of anenterprise—which may be either a formal
entity such as a corporation or an informal
association among individuals—through apattern of illegal activity. The illegal
activity may be violent crimes, narcotics
activity, or white collar crime, such as mailand wire fraud. Both conspiracy and RICO
charges enable prosecutors to include aseries of crimes in a single indictment.
C. Department of Justice Standards
and Procedures
Under United States Department ofJustice standards set forth in the UnitedStates Attorneys Manual, a federal
prosecutor must satisfy a two-part test
before seeking an indictment from a federal
grand jury. First, the prosecutor must
personally believe the defendant is guilty.
Second, the prosecutor must believe there
is a reasonable likelihood of obtaining aconviction at trial before an impartial jury.
Within the Department of Justice, theauthority for filing most criminal charges
rests with the United States Attorney’s
Office in each district. Certain kinds ofoffenses, however, require approval of thedivisions or sections in the Department
with primary responsibility for specificsubstantive areas. Thus, the Civil Rights,
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RESOURCE MATERIAL SERIES No. 53
indictments in cases falling in thesesubstantive areas. Similarly, the Organized
Crime Section in the Criminal Divisionmust approve organized crime and RICO
cases, and the Public Integrity Sections
must be consulted regarding corruption
charges against elected public officials andelection crimes.
Within the United States Attorney’s
Offices, individual prosecutors are
responsible for recommending whatcharges to present to the grand jury. The
recommendations are reviewed andapproved (or on occasion disapproved) by
a committee of prosecutors and supervisory
attorneys. The prosecutive decision in mostcases rests with the Chief of the Criminal
Division in the U.S. Attorney’s Office. The
final prosecutive authority for all cases
filed by the office rests with the UnitedStates Attorney, though as a practicalmatter, he or she generally makes the final
decisions only in the most significant,controversial or difficult cases in the office.
III. PROSECUTORS’ USE OF THE
GRAND JURY IN CRIMINALINVESTIGATIONS
A. Composition and Purpose of theGrand Jury
In many respects, the grand jury is thecornerstone of federal criminal
investigations and federal criminal process.
A grand jury comprises 23 ordinary
citizens, selected at random, who sit for aterm of one year (although the term may
be extended). At least 16 members of the
grand jury must be present for the panel
to conduct business, and in order to return
an indictment, at least 12 members of the
grand jury must vote to indict.
The grand jury serves a dual function.
First, it serves to protect innocent citizens
from improper governmental action byhaving a panel of ordinary citizens
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144

committed and that the accused committed
the crime. The requirement that any
person accused of a felony be indicted by
the grand jury is set forth in the UnitedStates Constitution.
The grand jury serves a second, equallyimportant, function of investigating
whether crimes have been committed. The
United States Supreme Court hasrepeatedly noted that the law provides the
grand jury with broad powers in order tofulfill its investigatory function and “widelatitude’’ in exercising those powers.
To carry out its investigatory function,
the grand jury is provided with subpoena
power to compel the attendance of
witnesses and the production of documents
and records. The grand jury’s subpoena
power extends throughout the UnitedStates. In addition, the grand jury’s power
to investigate crimes is not restrained by
the same technical, procedural andevidentiary rules that govern the conductof criminal trials. Hence, in determining
whether there is probable cause to believea crime has been committed, the grand jury
may consider any evidence, regardless ofwhether that evidence may ultimately be
admissible at trial.
B. Interaction between Prosecutors
and the Grand Jury
The grand jury functions as a separate
entity, independent in large part from thecourt and the prosecution. This allows the
grand jury to render an independentjudgment as to whether an individual
should be indicted.
Nevertheless, federal prosecutors play
an integral role in the functioning of theg r a n d j u r y. F i r s t , i n a d d i t i o n t oinvestigating whether crimes haveoccurred, prosecutors serve as “legal
advisors” to the grand jury. In this capacity,
a prosecutor serves to explain and answer
questions pertaining to the law. For
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any crimes under investigation by the
grand jury. Virtually all proceedings
occurring before the grand jury are
conducted by a prosecutor, including thequestioning of witnesses who appear before
the grand jury (although grand jurors are
permitted to ask questions themselves).
Prosecutors are also responsible fordrafting and presenting any indictment the
grand jury is asked to return. Thus, as apractical matter, until a prosecutor has
concluded that there is probable cause toindict an individual, the grand jury will not
be presented with an indictment. In short,although the grand jury is an independent
entity, to carry out its investigative
function, it works closely with government
prosecutors and law enforcement
investigators charged with serving
subpoenas issued by the grand jury.
Because of the unique, and often close,
relationship between prosecutors and the
grand jury, courts have admonishedprosecutors to remember that the object of
any investigation is to see that justice isdone. Likewise, the U.S. Department ofJustice has issued regulations designed toensure that prosecutors treat the grandjury as an independent body and to further
ensure that prosecutors do nothing thatwould improperly inflame or influence thegrand jury.
C. Grand Jury Secrecy
Federal law mandates that grand jury
proceedings be conducted in secret. To
ensure the secrecy of grand jury
proceedings, federal law prohibits
prosecutors, as well as grand jurors, fromdisclosing any matters occurring before thegrand jury.1
The Supreme Court has articulated anumber of reasons for requiring that grandjury proceedings be conducted in secret,1

Under certain limited circumstances, prosecutors
may obtain court orders allowing disclosure of
grand jury proceedings as directed by a court.

including: (1) to prevent the escape of those
whose indictment may be contemplated;(2) to ensure the utmost freedom to the
grand jury in its deliberations by
preventing persons under investigation or
their representatives from importuning the
grand jurors; (3) to prevent subornation of
perjury or tampering with witnesses who
may testify before the grand jury and later
appear at trial of those indicted by it; (4)to encourage free and untrammeleddisclosures by persons who haveinformation concerning the commission ofcrimes; (5) to protect the target of a grandjury investigation who is ultimately
exonerated from disclosure of the fact thathe or she was under investigation; and (6)to protect the target of a grand jury
investigation from the expense of standing
trial where there is insufficient evidenceof guilt. Taken together, the rationales for
grand jury secrecy reflect a balance
between ensuring that the grand jury
obtains all possible evidence, while at thesame time protecting innocent citizens.
D. Grand Jury Subpoena PowerThe grand jury’s principal power lies in
its subpoena authority, i.e., the ability tocompel the attendance of witnesses and the
production of documents and records. Thispower is quite broad, and includes theability to require a target of aninvestigation to provide nontestimonial
evidence, such as fingerprint andhandwriting exemplars to assist the grandjury in determining whether a suspect has
committed the crime under investigation.
The grand jury’s ability to subpoena
records and compel witness testimony isparticularly vital to the proactive
investigation of more complicated economic
crimes. Most evidence in long-term
investigations is obtained through theissuance of grand jury subpoenas. This istrue for several reasons. First, the grandjury need not obtain court approval to issue
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require court approval and some showing
to justify a belief that the documents sought
are evidence of a crime and will be locatedat the premises to be searched. Second,much documentary evidence is obtained
from innocent third parties who are notsuspected of criminal wrongdoing andshould be protected from the inevitabledisruption occasioned by a search forrecords. For example, bank records thatwould permit the tracing of funds obtained
and/or laundered by a target are virtuallyalways obtained through the issuance ofgrand jury subpoenas, absent some reason
to believe that the bank or its officials arein collusion with the target of theinvestigation.
E. Bases for Refusing to Comply
with Grand Jury Subpoenas
In most instances, there is no basis toresist the production of records to the grandjury or to refuse to testify before the grandjury. The most notable exception, theprivilege against self-incrimination, isrooted in the Fifth Amendment of theUnited States Constitution, which provides
that no individual may “be compelled inany criminal case to be a witness against
himself.” Thus, an individual may refuse
to testify before the grand jury if he/shehonestly and truly believes that his/heranswers would incriminate him/her or
could lead to evidence of a crime for which
he/she may be prosecuted. Because theprivilege against self-incrimination iscontained in the Fifth Amendment of the
U.S. Constitution, invoking the privilege
is commonly referred to as “taking theFifth.”
An individual may also refuse to produce
records in response to a grand jury
subpoena if he/she can demonstrate thatthe “act of producing” the documents would
be tantamount to testifying against
himself/herself. However, the Supreme
Court has determined that the act ofproviding handwriting samples or146

fingerprint exemplars is not “testimonial”
in nature, and, therefore, does not run afoulof the prohibition against compelling an
individual to testify against himself/
herself.
F. Prosecutors’ Enforcement ofGrand Jury Subpoenas
If the recipient of a subpoena refuses tocomply, a prosecutor has two options. First,
if the prosecutor believes the individual’srefusal to comply is proper because of avalid privilege, such as the privilege
against self-incrimination, the prosecutor
may, nevertheless, seek to compel
compliance with the subpoena by seeking
an order granting the recipient immunity.
Federal law provides that the government
may seek an order compelling a witness totestify or produce records notwithstanding
a valid privilege, provided the government
agrees not to prosecute the individual for
any crimes about which the witness isforced to testify. The authority to immunize
a witness is a powerful tool available toprosecutors to assist them in investigating
and prosecuting crimes. However, grantsof immunity are sought sparingly, and only
after careful consideration of a number offactors, including whether there is any
alternative means available to obtain theevidence sought.
If the prosecutor does not believe thewitness’s refusal to comply with a subpoena
is premised on a valid privilege, he/she maythen apply to a court for an ordercompelling compliance. At that time, therecipient of the subpoena bears the burdenof proving that he/she has a valid basis forrefusing to comply with the subpoena. If
the court orders the recipient to comply
with the subpoena, and the recipient fails
to do so, he/she may be held in contempt of
court. A contempt citation carries penalties
separate and apart from any crime underinvestigation by the grand jury. These
penalties may include monetary fines andincarceration.

107TH INTERNATIONAL TRAINING COURSE
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IV. SEARCH AND SEIZURE:
WHAT EVERY PROSECUTORMUST KNOW
A. Overview of the Fourth
Amendment
The Fourth Amendment, like the Fifth
Amendment mentioned above, is part of theBill of Rights, the first ten amendments to
the United States Constitution. Following
the American Revolution, the newly
independent colonies were determined toprotect citizens against infringements of
their individual rights. Thus, the First
Amendment guaranteed citizens the
freedom of speech, the freedom of assembly,
and the freedom of religion. The Fourth
Amendment guaranteed citizens freedom
from indiscriminate searches and seizures
by government agents.
The Fourth Amendment contains twobasic requirements. The first is aprohibition against “unreasonable”
searches and seizures. The second is therequirement that any warrant authorizing
a search or seizure of persons or property
be based upon “probable cause.” In the caseof a search, this has generally beeninterpreted to mean probable cause tobelieve evidence of a crime is to be foundat the location to be searched. In the caseof an arrest or seizure, this has generally
been interpreted to mean probable cause
to believe the person has committed acrime.
B. The Warrant Requirement
Though in practice many searches andseizures are conducted without a warrant,
in the absence of one of the recognizedexceptions to the warrant requirement (seeinfra), a search or seizure must be
authorized by a warrant issued by aMagistrate Judge, based on adetermination that probable cause exists
to support the issuance of the warrant.
The failure to secure a warrant in theabsence of any recognized exception to thewarrant requirement will lead to the
suppression, or exclusion, or any evidence
obtained as the result of the unlawful
search or seizure. This is commonly known
as the “Exclusionary Rule.” In contrast,
evidence seized pursuant to a warrant thatis later found to be defective may still be
admissible, if a District Judge determinesthat officers acted in good faith in relying
on the issuance of the warrant. This is
known as the “good faith” exception to the
Exclusionary Rule.
As noted above, even a warrant issued
by a Magistrate may be found invalid.
Common reasons for invalidating search
warrants include a judicial determinationthat the warrant was overbroad or lacked
specificity in naming the items to be
searched for. A warrant may also be
invalidated if the information upon which
the Magistrate found probable cause wasso old, or “stale” as to make the Magistrate’s
reliance on the information unreasonable.
Finally, if it can be shown that the warrant
was based on misinformation intentionallysupplied by law enforcement officers, the“good faith” exception will not apply andthe evidence will be excluded from trial.
Customarily, a warrant is obtained by afederal law enforcement agent, who swears
out an affidavit, written in the first person,
describing the information he/she is awareof and how he/she became aware of it. A
federal prosecutor reviews the warrant toensure the facts and sources meet the legal
requirements for securing a warrant. The
Magistrate reviews the affidavit todetermine whether, in the Magistrate’s
judgment, the facts alleged in thecomplaint provide the requisite “probablecause.” If so, the Magistrate issues thewarrant to search the location and seize
the items specified in the warrant or toarrest the person named.
C. Warrantless Searches
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RESOURCE MATERIAL SERIES No. 53
cases by hundreds of federal courts haveattempted to resolve recurring issues ofsearch and seizure law by delineating thescope of Fourth Amendment protections
and articulating the circumstances inwhich, despite the absence of a warrant, asearch or seizure may nevertheless comply
w i t h t h e F o u r t h A m e n d m e n t ’s“reasonableness” requirement. In
assessing the validity of a warrantless
search, courts have attempted to balance
the highly valued privacy rights ofindividuals with the legitimate needs of law
enforcement authorities to investigate,
expose and prevent criminal activity. The
following ten areas have been judiciallyrecognized as exceptions to the warrant
requirement of the Fourth Amendment.
1. Investigatory Detention of a
PersonThis exception permits a “brief
detention,” based upon reasonably
articulable suspicion (general hunches are
insufficient) of criminal activity. This
reasonable suspicion should be based upon
the officer’s personal observations or upon
the collective knowledge of several officers.
The detention must be reasonable in scopeand conducted for a legitimate
investigatory purpose.
Example: Police briefly detain a woman
with red hair, wearing a green dinner dress
and a white fur coat moments after thathearing a police broadcast that a tall redheaded woman in a green dress has juststolen a white fur coat from a store in themall. The detention is lawful.
2. Investigatory Detention of
Property
An investigatory detention of property
is subject to the same constraints as thedetention of a person: the detention mustbe brief and reasonably related to alegitimate investigation.
Example: A passenger on a bus iswaiting to have his luggage removed. As

148

it is being lowered to the ground, the bag
falls to the cement. A fine white powder isvisible on the ground directly beneath thebag. Detectives may pick up the bag anddetain it briefly to allow a drug dog to sniff
the bag for the odor of narcotics.
3. Search Incident to Valid Arrest
Following a lawful arrest, officers may
conduct a complete search of the defendant.
As long as probable cause exists for thearrest, no additional probable cause isneeded for the search. The post-arrest
search must be conducted within areasonably short time of the arrest itself
in order to be found “incident” to the arrest.
The search is not limited to a pat-down forweapons and may include any areas within
the defendant’s control.
Example: A defendant is arrested on astate arrest warrant for failing to appear
in court for a traffic violation. The arresting
officers conduct a search of the defendant’s
pockets and locate 10 counterfeit $100 bills.
The counterfeit bills are admissible in atrial for possession of counterfeit currency,
because they were seized during a search
incident to lawful arrest.
4. Seizure of Items in Plain View
In certain situations, evidence in plain
view may be seized without the necessityof obtaining a search warrant. The
incriminating character of the evidence
must be readily apparent, and the officer
may not improperly place himself in aposition to make the observation. In
addition to plain view, courts have also
applied the doctrine to the senses of smell,feel and hearing.
Example: Police officers respond to acomplaint of loud music and disorderly
conduct. They knock on the door to theapartment. As the door is opened, they see
a stack of blank credit cards and a machineused to imprint bogus credit cards. The
officers may enter the apartment and seize
the evidence.

107TH INTERNATIONAL TRAINING COURSE
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Example: Coast Guard officers board aboat headed for a U.S. port in order todetermine that the boat’s paperwork is inorder. Once on board, the officers smell astrong odor of marijuana emanating fromthe hold. The officers may “follow theirnoses” to the source of the smell.
The marijuana may be introduced attrial charging the ship’s crew withattempted narcotics importation because
the evidence of the illegal drugs—the odorof it—was readily apparent.
5. Exigent Circumstances
A warrantless search and seizure may
be justified when exigent circumstances
exist. In order to conduct a search based
upon exigent circumstances, the officers
must possess probable cause to search, andat least one of the following additional
factors must be present:a. evidence is in imminent danger ofdestruction;b. officers’ safety or the safety of the
public is threatened;c. the suspect is likely to flee; ord. the police are in hot pursuit of afleeing fugitive.
In determining whether an exigency
existed, courts will examine the totality ofcircumstances at the time immediately
preceding the search. Courts will not allow
the officers to create the exigency whichallows them to conduct the search.
Example: An art theft suspect is tracked
to his hideaway, a warehouse in downtown.
Officers look through the windows and see
the suspect loading identifiably stolen
pictures into a truck. They may enter andseize both the suspect and the stolen
property.
Example: A bank robber flees the bankand is identified by a series of eyewitnesses
as he runs several blocks before leaping afence to the backyard of a residence.
Officers may enter the backyard of theprivate residence to apprehend the fleeing

suspect and search the area for evidenceof the robbery.
6. Consent Searches
Probable cause to search is not necessary
if a person having custody or control of thedwelling voluntarily consents to a search.
Courts will examine the totality ofcircumstances, including a person’s
knowledge of his/her right to refuse toconsent, the person’s age, intelligence andeducation, degree of cooperation with
police, attitude about the likelihood of
discovery of contraband, length ofdetention, nature of questioning, and theuse of coercive behavior to induce theconsent.
Example: Police arrive at the house ofa suspected drug dealer and knock on thedoor. The suspect’s wife answers the door,
holding an infant. The officers ask to search
the house and the wife refuses. The officers
then tell her that, if necessary, they will
get a warrant. They also tell her that they
think she is a drug dealer and they will
ensure that her baby is put in a foster home
after her conviction. They continue that, if
she cooperates and lets them search, they
will talk to the judge and help her keep
her baby. She relents and they find drugs
inside. Based on this scenario, the court
would likely suppress the evidence on thebasis that the wife did not voluntarily
consent to the search.
7. Vehicle Searches
Because of vehicles’ configuration andinherent mobility, courts have held that
there is a diminished expectation ofprivacy in the area of a vehicle.
Accordingly, the search of an automobile
requires only that there be probable cause
to believe evidence is contained within thevehicle.
Example: A traffic officer stops a car
after observing erratic driving. As heapproaches, the driver takes a plastic

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RESOURCE MATERIAL SERIES No. 53
baggie with several small rocks and stuffs
it in between the seats.
The driver appears glassy-eyed anddisoriented. The officer reaches between
the seats and removes a bag of what
appears to be rock cocaine. The contrabandis admissible in a trial charging thedefendant with driving under the influenceand possessing narcotics.
8. Inventory Searches
After lawfully seizing an item, such as
an automobile, boat or piece of personal
property such as a wallet, police may
lawfully conduct an inventory of thecontents. This warrantless search ispermitted because it satisfies threelegitimate purposes: protection of theowner ’s property while it is in police
custody; protection of the police against
claims of lost or stolen property; andprotection of the police from potential
danger. An inventory search may not be
conducted solely for investigatory purposes.
Example: Police arrest a drunken
driver, who is taken to the station andbooked. The car is towed to the police
impound lot, where the contents areinventoried. Inside the trunk is a machinegun. The machine gun is seized and bullets
are compared with those taken from a
recent murder. They match. The gun will
be admissible because it was seized during
a lawful inventory search.
9. Border Searches
During a routine Customs search at aninternational border, no search warrant isrequired. The traveler and any
accompanying baggage are subject to a fulland complete inspection. Detention beyond
a routine Customs stop requires at least
reasonable suspicion of smuggling or otherwrongdoing.
Example: A passenger arrives on themidnight flight from a South Americancountry known to be a source of cocaine.
During routine questioning, the passenger

150

claims to be coming to the U.S. as part ofhis shoe-selling business, but can produce
no documents, samples, brochures ornames of business contacts he intends tomeet. He is nervous and perspiring.
Customs officials may refer him tosecondary inspection for further
questioning.
10. Abandoned Property
Warrantless searches and seizures ofabandoned property do not violate the
Fourth Amendment because there is no
reasonable expectation of privacy inabandoned property.
Example: A narcotics agent sees a
traveler retrieve a suitcase from a baggage
carousel and walk towards the exit. Whenhe sees a police officer enter the area, hedrops the suitcase and goes into a
restroom. When the traveler emerges fromthe restroom, he ignores the suitcase andruns out the door. A later examination of
the bag reveals no name or address tag.
The luggage is subsequently opened andfound to contain 10 pounds of heroin. The
narcotics would be admissible in a trial
because the suspect abandoned thesuitcase and its contents.
D. Prosecutorial Expertise in
Search and Seizure Issues
As the above discussion demonstrates,
the ability to defeat a challenge to thevalidity of a search—with or without awarrant—is crucial to a prosecutor’s ability
to introduce what may be dispositive
evidence of the defendant’s guilt. In somecases, the search or seizure will have takenplace before the prosecutor becomesinvolved. In such cases, the prosecutor’sfamiliarity with controlling case authority
will enable him/her to determine whether
the search can be defended.
In many cases, however, the prosecutor
is involved in an investigation at theearliest stages, when a decision to seek asearch warrant is made. In these107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
instances, it is critical for the prosecutor toknow what pitfalls to avoid to ensure awarrant will pass judicial scrutiny after the
search has been conducted. A prosecutor
must be able to make an informed decision
whether the evidence marshalled by law
enforcement agents will be sufficient toobtain a warrant or to defeat a challenge
to the sufficiency of any warrant obtained.
A prosecutor must also be sufficiently
familiar with search and seizure law toadvise law enforcement authorities of what
additional information, if any, must be
obtained to ensure the warrant will passconstitutional muster.

V. PROSECUTORS’ USE OFWIRETAPS AND OTHER
ELECTRONIC SURVEILLANCE
A. Legal Requirements for Wiretaps
and Electronic Surveillance
Law enforcement has a wide range oftools available to conduct electronic
surveillance of criminal activity. The term
“electronic surveillance” includes
techniques ranging from wiretaps to mobile
tracking devices. Because electronic
surveillance is highly intrusive, there arestatutory as well as constitutional limits
on such surveillance.
Wiretaps include live interceptions ofwire communications (telephones, cordlesstelephones, cellular telephones, andelectronic pagers), oral communications(uttered in a location where there is an
expectation of privacy), and electronic
communications (for example, facsimile
machines and digital pagers).
Because of the highly intrusive natureof wiretaps, Congress enacted a statutory
scheme requiring an application by agovernment lawyer, supported by a factual
affidavit of a law enforcement officer, andan order by a Federal District Court Judge,
to obtain a wiretap. In addition, except for
digital pagers, all such applications must

be approved by a high-level official of theUnited States Department of Justice. The
affidavit must establish the following: (1)probable cause to believe an individual iscommitting, or is about to commit, astatutorily enumerated offense; (2)probable cause to believe the particularcommunications concerning that offense
will be obtained through such interception;(3) a showing that normal investigative
procedures have been tried and have failed,
or appear to be unlikely to succeed if triedor to be too dangerous (also known as“necessity”); and (4) probable cause tobelieve that the facilities or location where
the communications are to be intercepted
are being used, or are about to be used, inconnection with the commission of thespecified offense. There is a 30-day
maximum interception period, plus
extensions, for each wiretap order, and theorder must provide that the interception
be conducted in a manner to minimize theinterception of communications not subject
to interception (“minimization”).
The wiretap statute does not include
silent video surveillance. Such video
surveillance is regulated by the Fourth
Amendment to the United States
Constitution, which prohibits
unreasonable searches and seizures. If thevideo camera is in a location where there
is no expectation of privacy (normally
exterior premises), no court authorizationis required to videotape activities withinview of the camera. If the camera is
directed to view an area where there is an
expectation of privacy, such as behindclosed curtains, over a fence, or in a roomof a residence, a search warrant isrequired. There must be a showing ofprobable cause, necessity, a particular
description of the activity to be videotaped,
and a statement of the offense to which it
relates. The 30-day interception period andminimization requirements apply.
Similarly, mobile tracking devices(“transponders” or “beepers”) used to follow

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a vehicle or package are not regulated by
wiretap provisions, but by the Fourth
Amendment. There is no privacy right inone’s location on the high seas, in public
airspace, or on a public road where avehicle or package may be transported.
Accordingly, government agents may use
a transponder without a court order.
However, if a vehicle or package goes inside
an area which carries a legitimate
expectation of privacy, or surreptitious
entry is necessary to retrieve it, a court
order signed by a Magistrate is necessary.
Other commonly used types of electronic
surveillance are pen registers and trap andtrace devices. A pen register is a device
which records or decodes electronic (orother) impulses which identify the numbers
dialed or transmitted on a telephone line.
A trap and trace device is a device which
captures the incoming electronic (or other)
impulses which identify the originating
number of an instrument (normally atelephone) from which a wire or electronic
communication was transmitted. A pen
register or trap and trace order can beobtained upon an ex parte application to a
Magistrate Judge, with a certification to
the court that the information likely to beobtained is relevant to an ongoing criminal
investigation.
B. Electronic Surveillance
Authorized by Consent of a Party
Not all intrusive electronic surveillanceneed be authorized in advance by a court.
Under federal law, when one party consents
to have a conversation or meeting
monitored, it may be audiotaped orvideotaped, regardless of the fact that otherparties do not know they are being taped.
Prosecutors often rely on such consensual
recordings.
Thus, is it not uncommon to record
phone conversations between a confidential
informant and the target of aninvestigation when the former is working
for the government and the latter is152

unaware of that fact. Similarly, when
undercover law enforcement agents set up
a “sting” operation in a hotel room,
warehouse, or other location that has been
wired to videotape and record meetings andconversations, undisclosed videotaping
may take place with the consent of the law
enforcement officers, even though thecriminals doing business with theundercover officers are unaware of thehidden cameras, and unaware that theirconversations are being recorded.
However, such electronic taping can takeplace only when law enforcement agentsor informants working for the government
are present in the room and thus
“consenting” to the electronic monitoring.
C. Prosecutors’ Role in Securingand Monitoring Electronic
Surveillance
In any type of electronic surveillance forwhich court approval is necessary,prosecutors are intimately involved in theprocess of obtaining the court order,
monitoring the surveillance, and reportingto the court on the results of thesurveillance. Indeed, in order to obtain acourt order authorizing a wiretap, a federal
prosecutor must obtain the approval of an
Assistant Attorney General in the
Department of Justice.
While the affidavit setting forth therequirements outlined above is signed by
the law enforcement agent, the prosecutor
is intimately involved in the drafting of theapplication, and it is the prosecutor who
signs the application submitted to theDistrict Court Judge. It is also theprosecutor who must report to the court
every ten days on the results of the wiretap
and must ensure that interceptions arebeing properly “minimized.” Finally, it is
the prosecutor who must apply to the court
for additional extensions of the wiretap
authorization order by demonstrating thatthe evidence obtained to date warrants
continued interceptions.

107TH INTERNATIONAL TRAINING COURSE
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VI. PROSECUTORS’ OBLIGATIONTO PROVIDE DISCOVERY
A. The Premise of Discovery in
Criminal Cases
Discovery is based on the premise thatpre-trial disclosure of evidence contributes
to the accuracy and efficiency of criminal
trials by avoiding unfair surprise andencouraging pre-trial resolution ofimportant issues. The American criminal
justice is an adversarial system, but certain
concepts of fairness override the idea thateach advocate is obligated solely to its own
cause. For example, prosecutors arecharged with seeking the truth, not justwinning a conviction. In order to advancethe pursuit of truth and fairness, courts
and the Congress have developed
disclosure requirements, called “discovery.”In the discovery process, the defendant iseffectively given access to much of theevidence the government intends to use toprove the defendant’s guilt.
Thegovernment is not expected to win its casethrough surprise, and the defendant is
expected to have ample opportunity tochallenge the evidence the government
intends to present against him/her.
In addition to ensuring fairness by
avoiding surprise, pre-trial disclosure ofevidence can simplify or eliminate trials bypermitting pretrial resolution of theadmissibility of evidence, and by prompting
guilty pleas in cases with very strong
evidence. Disclosure of evidence may
persuade a defendant to enter a guilty plea
upon the realization that he cannot
effectively defend against the government’scase. Similarly, a pretrial ruling thatcertain evidence provided in discovery is
or is not admissible will assist both thegovernment and the defense in assessing
the relative strengths and weaknesses of
their respective cases. Suppression ofevidence to be offered by the government
may result in dismissal of the charges
entirely, or a plea bargain to lesser charges.

Conversely the trial court’s rejection of adefendant’s challenge to the admissibilityof evidence may prompt a guilty plea thatwill save the court and the public the costof a trial whose outcome appears obvious
to both parties.
B. Prosecutors’ Obligation to
Provide Discovery
The prosecutor, as the government’s
representative, is responsible for what is
known by all members of the prosecution
team, including law enforcement officers
and the agencies for which they work.
Whether or not evidence is actually
revealed to the individual prosecutor, thegovernment is obligated to turn overdiscoverable evidence. With such a broad
scope of responsibility, the prosecutor may
accept the reports of law enforcement
officers or undertake personally to review
the files of any officer or agency
participating in the investigation of thecase, including personnel files of theofficers.
Discovery concerns all evidence which
the government intends to use in its casein-chief or which is favorable to the defense,
either because it might exculpate thedefendant or because it might lead to theimpeachment of a government witness.
This includes evidence of relevant
statements made by the defendant whether
before or after arrest. Documents or otherobjects of tangible evidence must be madeaccessible to the defense if they will be usedin the government’s case-in-chief or if they
concern a defense. The results of any tests
or examinations of evidence, such as thecomparison of fingerprints or handwriting,the review of accounting procedures, or the
results of DNA testing must be disclosed.
In addition, the identity of any expert who
will testify to the tests and the conclusions
reached by such expert must be provided
the defense.

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C. When Discovery Begins
Although there is no general
constitutional right to discovery in criminal
proceedings, the Supreme Court hasestablished rules for the disclosure ofcertain types of evidence based on the
defendant’s right to due process found in
the Fifth Amendment. The due processprotection of the right to a fair trial has
been interpreted to require similarprotections in pre-trial proceedings, suchas suppression hearings, and in post-trial
proceedings, such as sentencings. Suchrights do not apply before criminal charges
have been made in the form of a complaint,
indictment or information. Formal charges
are generally recognized as the beginningof criminal proceedings and the point at
w h i c h t h e g o v e r n m e n t ’s d i s c o v e r yobligations begin.

unfair surprise to the government. In order
to allow the government a fair opportunity
to prepare to respond to defenses of alibi
or insanity, the Federal Rules of Criminal
Procedure require the defense to give noticeof an intention to assert such a defense
and of the witnesses who will testify insupport of that defense. Such notice ismade meaningful by the disclosure of thenames of witnesses and the substance of
their testimony.
In contrast to compelled disclosure, adefendant may agree to reveal some or all
evidence as part of an exchange with theprosecution. For example, in lengthy andcomplex cases, the government may offer
to make some or all of its disclosures by aspecific date in advance of trial, if the
defense also commits to disclose its
evidence before trial.

D. When Discovery Ends
The obligation to give discovery
continues through trial. For example, thegovernment must give the defense any
statements made by witnesses called by thegovernment as soon as the witness has
testified on direct examination. In practice,prosecutors often turn over suchstatements before the trial, in order toavoid the loss of time which would result
from delaying the trial to permit defense
counsel to review the material before crossexamining the witness.
Even after a trial or guilty plea, thegovernment must disclose evidence whichfavors the defense if that evidence
undermines confidence in the conviction.
The prosecutor, no less than the court itself,
is responsible for ensuring that noconviction is obtained on false, improper,
or insufficient evidence.

F. Court Supervision of Discovery
The court has authority to control
discovery by denying, restricting, ordeferring any discovery based on therequest of either the government or the
defense, as long as the request is supported
by sufficient good cause. The request canbe made without disclosure to the opposing
party, if the court permits. The judge’s
decision may include any appropriate
order, but the entire submission must bepreserved so that it can be reviewed by a
Court of Appeals.
Judges frequently become involved in
enforcing discovery requirements. If one
party demonstrates that the other has
violated its discovery obligations, the court
has the power to compel the discovery or
to preclude use at trial of the withheld
evidence. Some judges issue standardizedorders for the government to provide
discovery within a specified schedule, toconfer with the defense about disputed
discovery matters, and to then report inwriting and in person to the court. Even
judges who do not maintain such a practicealso have to resolve disputed discovery

E. Discovery from the DefendantBecause of the privilege against selfincrimination, the defendant cannot becompelled to disclose his defense. Certain
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107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
matters. Occasionally, the defense willcontend that the government isdeliberately withholding discoverable
material or that the government has notundertaken a thorough enough review ofthe evidence. When the parties cannot
agree, that contention is presented to thecourt for decision.
The government, in answering
allegations concerning its compliance withdiscovery requirements, may respond inopen court, in a publicly filed pleading, or
ex parte and in camera (that is, without
notice to the defense, for the judge toconsider exclusively) or under seal (that is,a matter of record with the court that is
not accessible to the public, but is accessible
to the defense), depending upon thesensitivity of the subject. For example, thedefense may wish to know the identity of aconfidential informant, but the government
may assert its privilege not to reveal theidentity of informants who merely supplied
information, as opposed to those who dealt
directly with the defendant in anundercover capacity. In that case, thegovernment might submit a pleading ex
parte, in camera and under seal, in which
the informant is identified, the limits of theinformant’s participation in any charged
criminal conduct are detailed, and the court
is apprised of any reasons the informant
might have for fearing retaliation if his/her
identity were revealed to the defense. The
court will then have a full record on which
to decide whether the defense’s claims havemerit.
VII. FEDERAL SENTENCING
A. General Sentencing Procedures
and Provisions
Federal sentencing is governed both bystatutory provisions and by a body of rules
known as the “Sentencing Guidelines.” In
most instances, the federal statutes
defining particular violations of federal law
specify the maximum term of

imprisonment that the sentencing court
can impose following a defendant’s
conviction of that offense. On rare occasion,a statute might also provide for amandatory minimum term of
imprisonment. These minimum terms ofimprisonment are more common in thecontext of narcotics offenses and violent
felonies.
The sentencing guidelines establish asentencing range, in months, within which
the sentence must be imposed absent somelegal ground for departure upward or
downward from that range. The use of theterm “guidelines” is somewhat of a
misnomer; these provisions are mandatory
in nature.
The statutory penalty always “trumps”
the guidelines; in other words, whenever
the guideline range is more than thestatutory maximum or less than thestatutorily proscribed minimum sentence,the statutory penalty governs.
Federal sentencing can include some (orall) of the following penalties following thecommission of a crime:• Imprisonment: Required for mostfederal offenses under the sentencing
guidelines. Only minor offenses in thelowest guideline ranges are eligible forthe imposition of a term of
imprisonment in lieu of
imprisonment.
• Fines: Many federal sentences include
the payment of a monetary “fine” orpenalty to the federal government as
part of the overall punishment for thecommission of the crime.
• Restitution: In those instances where
the federal offense resulted inmonetary injury to a victim, thesentence will include mandatory
restitution repayments to theaggrieved victim.

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RESOURCE MATERIAL SERIES No. 53• Supervised Release and Probation:
Most federal sentences include
imposition of a term of either
supervised release (imposed when
prison time results) or probation (asubstitute for a term of imprisonment
for the more minor offenses). In short,these constitute periods during which
defendants are under the supervisionof the court and are required to abide
by various terms and conditions.
Violations of those terms can resultin additional sanctions.
B. The Sentencing Guidelines
1. Purposes and History
Underlying the Guidelines
The sentencing guidelines were enacted
to address three perceived deficiencies infederal sentencing practices. First, before
the guidelines, sentencing was left entirely
to the discretion of the judge, with noappellate review as long as the sentence
did not run afoul of the statutory penalty.
Not surprisingly, the sentence imposed
depended, in large part, on which judge
happened to be assigned the case. The
guidelines sought to reduce this disparity
by narrowing the possible sentencing range
for similar criminal conduct committed bysimilar defendants, thereby rendering
sentences more uniform and morepredictable. The guidelines further seek
proportionality in sentencing, by imposing“appropriately different sentences forcriminal conduct of different severity.”
Second, Congress sought to achieve“honesty” in federal sentencing. Before theguidelines, the sentence imposed by thejudge rarely turned out to be the sentence
the defendant served. Most defendants
became eligible for parole after serving onethird of their sentence, and almost all had
to be released after serving two-thirds.
Concurrently with the creation of theguidelines, Congress abolished the Parole
Commission, and declared that thesentence imposed was the sentence to be

156

served with minor reductions for good
behavior in prison. Thus, under the new
regime, defendants who receive full credit
for “good time” while incarcerated
nonetheless serve 85 percent of theguidelines sentence. There is no parole
under the guidelines.
Third, Congress felt that the prosecutor,
like the judge, had too much discretion preguidelines. The prosecutor conceivably
could charge one criminal act manydifferent ways and, in so doing, could makethe conduct appear comparatively more orless severe. In order to reduce the powerof the prosecutor, the guidelines sought tolink the punishment imposed to theunderlying criminal conduct, not simply
the counts of conviction.
As a result of these concerns, a uniquely
bipartisan Congressional effort adopted in1984 the Sentencing Reform Act(sometimes referred to as the “SRA”). The
SRA generally provided for thedevelopment of a federal sentencing
scheme that would further certain
enumerated purposes of criminal
punishment: deterrence, incapacitation,
just punishment, and rehabilitation.
To that end, the SRA delegated broad
authority to the Sentencing Commission(the “Commission”)—an independentagency composed of seven voting members,
at least three of whom must be federal
judges—to establish sentencing policies
and practices consistent with certain
statutory directives. The Commission was
also charged with periodic review andreform of the guidelines system over time.
The Commission’s initial guidelines were
submitted to Congress on April 13, 1987,
and after a prescribed period ofCongressional review, became effective on
November 1, 1987. Thereafter, theCommission promulgated a steady streamof yearly amendments to the guidelines,that take effect automatically absent
Congressional disapproval.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The initial reaction to the guidelines was
mixed, at best. Hostility to the new
guidelines scheme resulted in a host of legal
challenges, including attacks on theconstitutionality of the Commission itself.
In 1989, the Supreme Court ended any
uncertainty regarding the constitutionalityof the guidelines, holding in Mistretta v.
United States, 488 U.S. 361 (1989), that thecomposition and duties of the Commission
did not violate the doctrine of separationof powers.
2. How the Guidelines Work
The guidelines are premised on thenotion that federal sentencing should
depend on two factors alone: the severityof the defendant’s overall criminal conduct(not simply the count or counts ofconviction) and the defendant’s criminal
past. In accordance with that approach,
the guidelines set forth a litany ofcomputations designed to determine: (a)the severity of the defendant’s criminal
conduct in the case in which he/she is to besentenced (the “offense level”), and (b) the
past criminal conduct of the defendant (the“criminal history category”). Those two
factors are then plotted on a chart todetermine a “sentencing range,” a range ofmonths within which the court must
impose a sentence absent a specific andappropriate basis for departing from therange. The intersection of the offense level(the vertical axis of the chart) and thecriminal history category (the horizontalaxis) determines the applicable guideline
range.
The guidelines employ what is referred
to as a “modified real offense” system ofsentencing. A defendant’s sentence is notcontingent on the offense of conviction
alone; a sentencing judge is empowered tolook at the totality of a defendant’s“relevant” criminal conduct. However, theoffense of conviction provides the starting
point for the calculus. The guidelines’
relevant conduct provision defines when

the court can consider conduct beyond thecount of conviction in determining thesentence.
It is well settled that facts at
sentencing—unlike facts at trial—need
only be proven by a preponderance of theevidence. Indeed, even conduct for which
a defendant has been acquitted can beconsidered at sentencing, if the court finds
proof of that conduct has been establishedby a preponderance of the evidence. The
court may consider at sentencing evidence
which does not comply with the Federal
Rules of Evidence and which is not subject
to confrontation, as long as the evidence
meets minimal standards of reliability.
Accordingly, sentencing hearings tend to be
more relaxed than trials, and generally do
not involve the presentation of witnesses.
Evidence is proffered, if at all, throughhearsay declarations.
3. Departures
The guidelines are designed toencompass almost all cases. Accordingly,
sentences outside the applicable guideline
range, known as “departures,” should berare.
In general, the court may depart fromthe guidelines if it finds “that there exists
an aggravating or mitigating circumstanceof a kind, or to a degree, not adequately
take into consideration by the Sentencing
Commission in formulating the guidelinesthat should result in a sentence different
from that described.” The guidelines
explain that departures are designed toaccount for cases outside the “heartland”
of the proscribed guidelines.
The most common departure basis arises
when a defendant cooperates withprosecutors in the investigation orprosecution of others. In those instances,the law empowers federal prosecutors toseek a reduction in sentence. The decision
to seek a sentencing reduction based on a
defendant’s assistance to law enforcement
rests solely with the prosecution.

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VIII. PROSECUTORS’ ETHICALOBLIGATIONS
Federal prosecutors are entrusted withtremendous authority and responsibility,
often at a relatively young age. The
manner in which they exercise that
authority has significant implications forindividuals, institutions, and society atlarge. The decision to seek an indictment
against an individual or organization will
have far reaching consequences, regardlessof the ultimate outcome of any criminal
proceeding.
For all the limitations imposed bystatute, the Constitution, and rules ofcourt, it is a prosecutor’s recognition of theimportance of his/her role in the criminal
justice system and of the need to exercisethat role with the utmost integrity thatguarantees the fairness of the criminal
justice process. Unlike criminal defense
counsel, who are obligated to defend theguilty as vigorously as the innocent, federal
prosecutors have an independent
obligation to see justice is done.
At any stage of the proceedings, theprosecutor must be receptive to evidence
that may affect the reliability of witnessesor have a potential impact on the trier offact’s assessment of the defendant’s
probable guilt. Moreover, even before
making a decision to pursue criminal
charges, a prosecutor must examine all thefacts and circumstances to determine whatcharges, if any, best reflect the defendant’s
criminal behavior and its consequences.
Finally, at sentencing, a prosecutor’s roleis not to seek the heaviest possible penalty,
but to urge the court to impost a sentencethat best reflects the severity of the
defendant’s conduct, taking into accountthe nature of the offense, its consequences
to the victim(s), the defendant’s criminal
history, and the defendant’s cooperation
with government authorities.
Ultimately, a prosecutor’s credibility is
his/her most valuable currency. A good158

prosecutor knows that he/she must earn
the trust of the judge, the jury and opposing
counsel.
A prosecutor who overstates his/her case,strains to interpret a precedent in a waythat favors the government’s case, or
advocates unreasonable positions,squanders the precious commodity ofcredibility. When even one prosecutor loses
that trust, all prosecutors are tarnished in
the eyes of the court and the community.
Most citizens believe in their criminal
justice system because years of experience
have demonstrated that federal
prosecutors use their authority judiciously
and appropriately. Only by continuing toadhere to the highest standards of ethicalbehavior can prosecutors maintain that
hard-earned trust.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’
PAPERSPARTICIPANTS’ PAPERS

THE ROLE AND FUNCTION OF PROSECUTION
IN CRIMINAL JUSTICE
Pauline Christine Ngo Mandeng*
I. INTRODUCTION
Cameroon is a country situated incentral Africa which has a population of
approximately 14 million people, spreadover landscape with diverse physicalfeatures, on an area of about 475 square
kilometres. There are about 250 tribes
which communicate in different national
languages. This diversity has earned thecountry the appellation “Africa inminiature”.
Two official languages are spoken in
Cameroon, i.e., French and English, which
illustrate the country’s bi-cultural
historical background. The legal system
is bi-jural with the modern law inheritedfrom the British common law and theFrench civil law systems on the one hand
and the customary law on the other.
The common law system is in practicein the English-speaking north-west andsouth-west provinces of what was West
Cameroon, in the former federal republic.
In the remaining provinces of Frenchspeaking Cameroon, the civil law systemprevails in what is about eighty percent of
the country. For the purpose of thispresentation, no further reference shall bemade to the customary courts, as they haveno criminal jurisdiction. The military
tribunals and other special courts shall not
be discussed as they concern specificcategories of offences and offenders.
On 20 May 1972, the late A. Ahidjo, theformer President of Cameroon, obtained
popular consent by referendum totransform the country into a unitary state.
* Officer in Charge of Research, Directorate ofLegislation, Ministry of Justice, Cameroon.

One of the direct consequences of this reunification would be the harmonisation of
the common law and civil law systems andthe integration therein of purely
Cameroonian concepts and customs, so as
to better meet the aspirations of the people.
Needless to say, this has been a slow anddifficult process, hampered by bothtechnical and political considerations.
Considerable efforts have been made, andthe country can boast of several statues
which reflect these pre-occupations. The
organisation and functioning of the
Judiciary is regulated by one ordinance.
The laws which organise the professionsof barrister, bailiff and notary public are
all applied nationwide. Ordinance No. 72/
4 of 26 August 1972 and its subsequent
amendments have harmonised theadministrative organisation and theattributions of the courts but, more
especially, the legal department. Thereexist differences related to the mode ofcollection of evidence and the manner inwhich it is adduced in court. The personnelof investigative agencies, irrespective of theareas where they perform their functions,
receive their training in the same national
institutions. Likewise, judicial and legal
officers undergo the same academic andprofessional training in both official
languages and are initiated to thefundamental principles of the different
legal systems. The National Assembly
adopted the Cameroon Penal Code in 1967.
The draft bill of a harmonised criminal
procedure should be completed in the near
future. Sustained efforts are made to adapt
existing legislation to the ever evolvingsocial and political context, by integrating
therein different notions of human rights,

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democracy, environmental protection,
gender equality, etc.
The adoption of Law No. 96/6 of 18
January 1996 to amend the constitution ofJune 1972, amongst other innovations,significantly modified the status of the
Judiciary, which was elevated from theranks of a mere authority, to a full power,
thus becoming the third effective arm ofgovernment. A substantial judicial reform
is currently underway at the Ministry ofJustice to adapt existing legislation to thisstate of affairs, and to redefine therelationship between the Judiciary and theother powers, more especially with the
Executive.
II. ORGANISATIONAL STRUCTURE
In Cameroon, judicial power is exercisedby the Supreme Court and other ordinary
courts. The basic statutes regulating theorganisation and functioning of thesecourts are Ordinance No. 72/5 of 26 August
1972 and its subsequent amendments andOrdinance No. 72/4 of 26 August 1972d its
subsequent amendments. Judicial andlegal officers are governed by Decree no.
95/48 of 8 March 1995 on the status ofmagistracy, which regulates all issues
relating to their respective careers.
It has already been stated that
Cameroon has one penal code. The
prosecutorial systems used to implement
this code differ substantially. In thecommon law jurisdictional area where theadversary system prevails, the basic
statutes used are cited as “ ‘The Criminal
Procedure Ordinance’ Cap. 43 of the Lawsof the Federation of Nigeria” (CPO), and“The Evidence Ordinance Cap. 62 of the1958 Laws of the Federation of Nigeria”(‘Evidence Act). Under the civil law
jurisdictional area, the system adapted inreferred to as inquisitorial and theprocedure code cited as “Code d’Instruction
Criminelle’ ” (CIC).

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The term legal department is used in thegeneral sense to translate the French term“parquet” or “ministere public” i.e., thedepartment of public prosecution. The
legal department is an integral part of thecourt. It must be present during all
criminal proceedings, its presence is
optional in civil matters. Though the legal
department is a party to proceedings
initiated subsequent to the violation of
criminal law, resulting in loss to one ormore individuals and disrupting social
order, it must exercise a fair amount of
impartiality in the execution of its
functions, so as to ensure a proper
application of the law to all including thesuspect. The objective of the prosecution
must remain the fair application of the law.
The State counsel must ensure that thispolicy is reflected at all stages of theadministration of criminal justice.
A. Court Structure
The administrative set up of the courts
is based on the organisation of theadministrative units in the country. Thereis one Supreme Court, which functions asa “Cour de Cassation,” ten Courts of Appeal
at the provincial level, a High Court foreach division, and a Court of First Instanceat the level of the subdivision. In practice,
however, some High Courts cover morethan one division and some Courts of First
Instance more than one subdivision.
B. Criminal Jurisdiction of Courts
The provisions of the penal code
determine the penalties for different
offences. The classification of theseoffences constitutes the basis for thedetermination of the competence of thecourts in criminal proceedings. The
Supreme Court is a court of law and does
not go into the merits of the case, butverifies that there is no violation of the law,in the judgements from the Courts ofAppeal. If it finds that there has been such
violation, the judgement in issue is107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
quashed and the case referred to a different
Court of Appeal to be tried afresh. A case
may thus be referred to different appeal
courts twice. If an appeal is lodged to theSupreme Court a third time, then the court
will hear the case on the merits and its
decision is final.
Appeals are filed at the Courts of Appeal
directly from the High Courts and Courtsof First Instance respectively. Under the
CPO, the Court of Appeal does not judge
facts. Its judgement on points of law rely
on findings based on facts as decided by
the trial court. Under the CIC, court
proceedings are recorded differently. The
Court of Appeal reviews both facts and law.
The High Court is competent to hear anddetermine felonies, i.e., offences for which
the minimum term of imprisonment ismore than ten years to the death penalty.
The Court of First Instance is competentto hear and determine misdemeanours, i.e.,
offences for which the maximum term of
imprisonment is ten years; and petty
offences, i.e., offences for which the
maximum term of imprisonment is ten
days. Upon conviction, the Court of First
Instance may award civil damages
amounting to more than five million francs,
which is the maximum award of damages
in civil cases. In addition to imprisonment,
the court may choose other sanctions froma wide array of other principal andaccessory penalties.
Minors, i.e., persons aged below 18 years
at the time of commission of an offence, aretried before the Court of First Instance.
These trials are conducted in camera.
However, where the offence was committed
in the company of adults, all the suspects
are tried before the High Court. In thiscase, the penalty imposed on the minor
after conviction is less severe. Complex
misdemeanours may also be tried in theHigh Court. Territorial competence isregulated by procedural rules.

C. The Characteristics of the Legal
Department
Two fundamental principles influence
the execution of prosecutorial functions bylegal officers by the legal department
namely:• subordination to instructions fromhierarchy; and• indivisibility of action by the legal
department.
1. Subordination to Instructions
from Hierarchy
The legal officers in charge ofprosecution at different levels of the court
structure, direct and control all actions
conducted by the officers in their respective
chamber. They are accountable before
hierarchy. Some or all of these functions
may be delegated to other legal officers
within the chambers under conditions set
out in the ordinances on judicialorganisation and the decree on the statusof magistracy respectively. No legal officer
may be appointed to functions which placea senior legal officer under his authority.
A relationship of subordination exists
amongst the legal officers in the samechambers, between the chambers of the
Procureur General and all the State
Counsel Chambers in the same province
and between the Minister of Justice, keeperof the seals and all the legal departments.
The Minister of Justice is a member ofCabinet.
2. Indivisibility of Action by the
Legal Department
Legal officers appointed to different
functions in the same chambers may
execute the same concurrently or insuccession, both in Chambers and before
the different courts.
Legal officers appointed to functions at
the legal department may assist or replace
other legal officers in their prosecutorial
functions in different State Counsel’s
Chambers in the same province.

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D. Legal and Judicial Officers
Magistrates in Cameroon are referred toas judicial or legal officers, the former
exercising their functions on the bench andthe latter as prosecutors within theframework of the legal department. The
term “legal department” in a strict senserefers to the office of the Procureur General
who is the head of the prosecution
department at the Court of Appeal. He is
assisted by one or more Advocate-General,
one or more Substitut-General and in somecases one or more Attaché. The different
appellations reflect the seniority of theofficers in decreasing order. They are ofequal rank as members of the bench incorresponding functions in the courts. For
purposes of protocol, the judicial officers
take precedence. At the High Court andthe Court of First Instance, the head of theprosecution department is the State
Counsel who may be assisted by one ormore deputy State Counsels. The number
of officers in the legal department depends
on the classificaiton of the courts according
to criteria determined by the Ministry ofJustice.
Magistrates working in the Ministry ofJustice or on secondment in otherorganisations are assimilated to legal
officers and are subjected to the same
regime for promotions, transfers or
disciplinary measures. The organ which
processes such files is the National
Classification Commission, while the organ
which manages the careers of judicial
officers is the Supreme Council of
Magistracy presided over by the Head ofState. The proposals and recommendations
from these two bodies if met with approval
are confirmed by Presidential decree. It is
important to note that there are no clear
cut demarcations within the magistracy;
legal and judicial officers may be appointed
to different functions on the bench or in
the legal department indiscriminately andat any stage of their respective careers,
depending on the exigencies of service.

162

E. Qualification of Prosecutors
To qualify as a judicial or legal officer,
the holder of a postgraduate diploma(generally in private law though otherdisciplines are accepted), must pass ahighly competitive examination into the
National School of Administration andMagistracy (ENAM). The duration of the
training is two years and consists of eightmonths theory on ethics, draftsmanship,court management, etc. The rest of thetime is consecrated to practical training in
the courts at the Ministry of Justice, theprivate bar, the investigative agencies andother services involved in theadministration of justice. There is an
examination at the end of the training, and,if successful, the pupil magistrate is
integrated into the magistracy as a grade
one legal or judicial officer. He is appointed
to a function, which corresponds to his
grade by presidential decree. Before
assuming office, an oath is taken before theSupreme Court. Appointments andtransfers are not made for a specified term,
the periodicity of transfers depends on theexigencies of service.
III. THE ROLE OF THE
PROSECUTION AT THE
INVESTIGATION STAGE
The criminal process commences after
the commission of the offence. The victim,
witness, or any person having knowledgeof the circumstances may report themorally or in writing either to the State
Counsel, or any other investigative agency.
When the report is lodged at the State
Counsel’s chambers, the State Counsel
shall forward it to the competent
investigative agency with specificinstructions as to the manner in whichinvestigations should be conducted.
G e n e r a l l y, t h e j u d i c i a l p o l i c e i scompetent to investigate felonies andcomplex misdemeanours nationwide andparticipates in international

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
investigations. The public security police
investigates misdemeanours and petty
offences in the major cities and towns. The
gendarmerie conducts investigations in therural areas, where police structures are in
existence or inadequate. Specialised
agencies conduct investigations in relation
to special offences in specific sectors suchas the customs or forestry departments.
In the conduct of investigations, thepolice and gendarmes act as judicial police
officers, and assist the judiciary in theperformance of some of their duties under
the authority and control of the State
Counsel. They are “auxiliaries of justice”.
For all other considerations such as
promotion transfers, disciplinary measuresand other purely administrative matters,
they revert to the authority and control of
their superiors within the police andgendarmerie respectively.
Under the Ordinance on Judicial
Organisation, the State Counsel has
absolute power to personally conduct
investigations for all offences. However,in practice, he intervenes in relation tos e r i o u s o f f e n c e s s u c h a s m u r d e r,assassination, particularly sensitive casesor those involving senior officials. If
dissatisfied with the conduct ofinvestigations, he may instruct theinvestigator to change his mode ofinvestigation, as well as order fresh orcomplimentary measures.
The
investigative agencies are all underministries other than the Ministry ofJustice. The Prisons Department andSocial Welfare Services, which are involvedin the administration of criminal justice,also belong to different ministries. Thereis insufficient cooperation between these
services and the Ministry of Justice, whichlacks adequate resources to ensure
effective coordination of different activities.
A. Arrest and Detention
A suspect may be arrested with orwithout a warrant, after which he must be

taken to the place reserved for the receptionof arrested persons and informed of thecharges against him. He must be provided
reasonable facilities to enable him obtainlegal advice, bail where applicable, and topermit him to prepare his defence in viewof his release. The police and gendarmes
shall report to the State Counsel all persons
arrested with or without warrants within
the jurisdiction. When it is lawful ornecessary, the judicial police officers may
arrest any person suspected of having
committed an offence. In principle, aperson shall not be arrested without awarrant except in cases of “flagrant delit”.
The State Counsel may control thestructures used by investigating agencies
for the detention of suspects.
Basically, there are two types ofinvestigations: preliminary investigations
and flagrant delit investigations. Where asuspect is arrested in relation to a case offlagrant delit, the police shall conduct him
to the nearest State Counsel within 24
hours; and, if the State Counsel is notavailable, before the nearest legal officer
within the jurisdiction. The suspect may
only be detained thereafter by order of theState Counsel or the said legal officers. The
said order is valid for 24 hours and may bee x t e n d e d t h r i c e . T h e r e a f t e r, i finvestigations are not completed, thesuspect must be released. This form ofdetention is called “garde à vue,” or police
custody. In the north-west and south-west
provinces, a statement after theadministration of the words of caution isrecorded from the suspect, and if hepresents sufficient surety he may be
granted bail.
In the rest of the country, there is no
police bail. In simple cases, the police may
close the file and release the suspect in theface of insufficient evidence or where analternative solution is preferred to eventual
prosecution. Otherwise, the suspect istransferred to the State Counsel with hisfile, where he may either be remanded in

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custody awaiting trial, (preventive
detention ) or allowed to appear for the restof the proceedings as a free man.
When an offence is committed in thepresence of a legal officer within his
jurisdiction, he may arrest the suspect
himself or order for his arrest and remand
him in custody pending investigations
preceding summary trial. The State
Counsel may, if he deems it fit, byendorsement on the warrant direct that theperson be released on bail, upon his
entering into recognizance for his
appearance as may be required on theendorsement. A person suspected of an
offence punishable with death shall not be
admitted into bail, except by the judge ofthe High Court. If he is in prison custody,
the court shall issue an order of release to
the officer in charge of the prison or otherplace of detention and such officer onreceipt of the order shall release him.
The conditions under which the suspect
may benefit from bail are specific by law.
When admitted to bail, the suspect shall
only appear before the State Counsel as
directed. When the accused person isarraigned before the court, this bail issubstituted with court bail. The
prosecution may object to an accused
person being released on bail by the court,
even in respect of a bailable offence on
serious grounds. Though this objection is
not binding on the court, it is given due
consideration and upheld where thecircumstances so warrant.
B. Warrants
The State Counsel has wide powers toorder any measures necessary during
investigation to enable him obtain evidence
which will contribute to the manifestationof the truth. It is in this regard thatwarrants of arrest, search warrants
remand warrants, etc. are his prerogative.
Investigating officers do not have the power
to issue these warrants, which are however
executed either by the investigative164

agencies or with their assistance, under thesupervision and control of the State
Counsel.
IV. THE INITIATION OF
PROSECUTION
The provisions of section 23 (1) and (2)of the Ordinance on Judicial Organisation,authorise the State Counsel in criminal
matters and without prejudice to the rightsof the victim, to investigate and record
offences, conduct judicial inquiries andinvestigation, institute proceedings andinvestigations, issue arrest and detention
warrants, and refer cases to the competentcourts.
A. Prosecutorial Discretion
The State Counsel has absolute
discretion as regards initiation of criminal
proceedings. Even where there is sufficientevidence, the State Counsel may refrainfrom prosecution, if this is not the mostsuitable solution or if prosecution may
jeopardize other interests. This discretionis subject to an internal check to control
abuses by the principle of subordination tohierarchy.
The evidentiary standard required toindict a suspect is a prima facie case.
Under the CPO, when investigations arecompleted, the investigating officer
forwards the file along with any exhibits
to the State Counsel recommending what
action should be taken in his report. The
State Counsel determines the final
outcome of investigations.
Under the CIC, the file is forwarded to
the State Counsel with the suspect. The
State Counsel may release him or remand
him in custody awaiting trial. The
complete case file is then transmitted tothe competent court, so that the trial judge
may take cognizance of its contents before
the trial.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
B. Preliminary Inquiry
Preliminary inquiry is the investigationof a criminal charge by an examining
magistrate, with a view to the committalof the suspect before the appropriate court.
This investigation is conducted in
Cameroon, not by a judicial officer as is thecase in most countries, but by the State
Counsel. He is assisted throughout theinquiry by a court registrar, who records
all statements and performs other clericalfunctions. The absence of the registrar
during the inquiry renders the wholeprocess null and void.
The conduct of the preliminary inquiry
is regulated by the ordinance on judicialorganisation. State Counsels, have thesame attributions under both prosecutorial
systems. Any differences, in the mode of
implementation arise essentially fromdivergencies under procedural rules.
Preliminary inquiries are, save forcontrary legal provisions, obligatory incases of felonies, and optional for
misdemeanours and simple offences. The
objective of the inquiry is to ascertain that
there is sufficient evidence to justify theaccused person being put on trial. At theend of the inquiry, the State Counsel makes
an order which either commits the accused
person before the competent court or closes
the file and discharges him. This discharge
does not bar the prosecution fromconducting another inquiry on account on
the same facts.
V. THE ROLE OF THE
PROSECUTION AT THE TRIAL
STAGE
A. In the Common Law
Jurisdictional Areas
The prosecution prefers charges for
misdemeanours and petty offences, bills of
indictment where the offence committed isa felony, or the accused person is indictedin the High Court. The charge sheet orbill of indictment is filed at the registry of

the competent court, where the chief
registrar ensures that it is registered. The
case is enrolled on the cause list at the datesuggested by the legal department and forwhich service has been effected on theparties.
When the matter is called in court for
the first time, the accused person isarraigned and his plea recorded. In mostcases, accused persons cannot afford legal
assistance, which may be obtained under
the conditions prescribed by law. Whenstanding trial for a felony punishable withdeath, the court appoints defence counsel
for the accused person from the private bar.
The cost of his defence is borne by the State.
When the accused person does not havecounsel, it is the duty of the court toascertain that the accused person
understands the legal issues at each stageof the proceedings, and that his rights areprotected.
Following a plea of guilty, the court callson the State Counsel to present the factsof the case. All exhibits including thestatement recorded from the defendant arethen tendered in evidence with leave of thecourt. The accused person is given theopportunity to make an explanation. If thecourt is satisfied from his explanation thatthe accused person fully understood theimplications of the plea, and that he is not
putting up a defence, it shall make a rulingconvicting the defendant. State Counsel
then discloses the past criminal record of
the convict to the court. The defendant isinvited to make an allocutus, which is aplea for leniency before sentencing. If thecourt finds that the defendant did notintend to plead guilty, his plea issubstituted with a plea of not guilty, and afull trial is conducted.
Where the accused person enters a pleaof not guilty, the case is adjourned to afurther date to enable the accused person
to prepare his defence. At the hearing, thewitnesses for the prosecution are called
commencing with the complainant, and the165

RESOURCE MATERIAL SERIES No. 53
investigator is usually called as the last
witness. They are led under examinationin chief by the State Counsel, subjected tocross-examination by the accused person
or his counsel, and re-examined by theState Counsel to clarify any issues whicharose under cross-examination.
There is little or no consultation andclose collaboration between the State
Counsel and defence counsel. The two are
engaged in a “legal battle” and disclose
their intentions or strategies only whenrequired to do so by the law or the court.
All evidence is adduced during the trial
with leave of court, and the other party may
object to its admissibility in evidence. The
court must make a ruling for every
application. The conditions of admission,i.e., the weight to be attached to evidence,are determined by strict exclusionary
evidential rules.
Great skill is necessary to be an efficient
prosecutor or good defence counsel, andthese skills can to a great extent influence
the final outcome of the proceedings. At
the end of the case for the prosecution, thecourt makes a finding as to whether or nota prima facie case has been made against
the accused person. When a prima faciecase has been made against the accused
person, the court invites him to make adefence and remain silent. He may testify
from the dock, or opt to testify on oath. The
standard of proof necessary to secure aconviction is beyond a reasonable doubt
and this onus rests on the prosecution andmay only shift under specific circumstances
provided by law.
Opening addresses may be made at thecommencement of the trial. This practice
is observed before the High Court, but often
omitted in the Court of First Instance. The
same applies to the closing address. In theaddress, both the defence counsel and theState Counsel summarize the facts of thecase, analyse the evidence adduced andreview the different legal issues raised in
the course of the trial. It is at this stage,

166

that the State Counsel may makerecommendations relating to sentencing to
the court. The order of addresses isestablished by rules of procedure, and thedefence counsel has a right to reply.
Thereafter, any further reply can only bemade on point of law after leave of court.
It is important to note that addresses are
not part of the trial and their contents are
not binding on the court.
In cases involving petty offences andmisdemeanours, the court may pass a
verdict and proceed with sentencing
immediately after the trial. For felonies
and serious midemeanours, the court
usually adjourns to a further date forjudgement and sentencing. The sentence
is executed immediately by bailiffs under
the control of the State Counsel. However,in the event of an appeal, execution of thesentence is suspended.
B. In the Civil Law Jurisdictional
Areas
Upon indictment, the complete case file(and the past criminal record of the accused
person) is sent to the court, so that the trial
judge may take cognizance of its contents
before hearing.
When the case is called for the first time
the court proceeds to the verification of theidentity of the accused person and records
his plea. As is the case in the north-west
and south-west provinces, accused persons
usually plead not guilty. The evidentiaryrules under the CIC are not strict. The trial
is conducted in an inquisitorial manner,
where the presiding judge has wide powers
and plays an active role in the effort toarrive at the manifestation of the truth.
The standard required for conviction isabout that of a prima facie case. The
intimate conviction of the judge determines
the final verdict.
The defendant does not testify on oath,as he is under no obligation to tell the truth.
He may choose to remain silent throughout
the proceedings. The defendant is

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
presumed innocent until proved guilty but
the onus seems to rest on him to prove that
he did not commit the offence.
At the end of the trial, the State Counsel
makes a submission to the court similar tothe closing address under the CPO. The
defence counsel replies thereto and thedefendant is the last person to address thecourt, if he so wishes. The case is usually
adjourned for the verdict and sentencing,
and the judgement is often drafted
subsequently. The sentence is not executed
until the time allowed for appeal expires,
unless the court orders otherwise.
Judgements are executed by bailiffs under
the control of the State Counsel.
C. Suspension of Prosecution
The State Counsel may suspend
prosecution with leave of court, undervarious sections of the CPO. Section 284
refers to withdrawal by the State Counsel
following an application by the victim towithdraw his complaint. The State
Counsel may, under section 75 of the CPO
and at any time before judgement, obtainleave of court to suspend prosecution.
There are others, perhaps the mostinteresting is the Nolle Prosequi. This is
an application made orally or in writing by
the State Counsel to the court indicatingthat the prosecution does not intend thatthe proceedings continue, under section 73
of the Evidence Act. Unlike otherapplications for suspension of prosecution,
the State Counsel need not offer the court
an explanation, and the court is bound to
grant the prayer.
The effect of suspension will varydepending on the stage at which theapplication was made to the court. In allcases, the court should specify whether theaccused person is discharged or acquitted.
Generally, where the accused person is notcalled upon to put up a defence, he isdischarged; and if he is asked to make adefence, he is acquitted. The prosecution
may subsequently prefer a fresh charge on

account of the same facts following adischarge. An acquittal, operates as a bar
to prefer a fresh charge on account of thesame facts.
Under the CIC, once criminal
proceedings have commenced, they must
continue till completion. It is important tonote, that contrary to the situation under
the CPO, an accused person may be triedand convicted in absentia.
D. Plea Baragaining
There is no plea bargaining in
Cameroon.
E. Private Prosecution
Private prosecution is possible bothunder the CIC and CPO for petty offences
and some misdemeanours. In practice, thisright is not exercised in the north-west andsouth-west provinces. Details of theprocedure will not be discussed here. At
the trial, however, the State Counsel is aparty to the proceedings. His submissions
are usually limited to an analysis of thelegal issues and the impact of the offence
committed, on public order.
The “constitution de partie civil”, thougha civil law notion, applies in the north-west
and south-west provinces under theOrdinance on Judicial Organization. By
this procedure, the victim of an offence may
file a civil claim for damages for any loss
resulting from the commission of an
offence, at the same time as his complaint.
It is not the duty of the State Counsel toestablish the civil claim, he may, however,address the court on the issue in his
submissions, where the claim is justified
and make any recommendations as to thequantum of damages to be awarded to thevictim.

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VI. SENTENCING
The principles of sentencing are set out
in Book One of the Penal Code. Sentencing
is the prerogative of the Judge. The role of
the State Counsel in sentencing is to assist
the court in arriving at an appropriate
sentence, by providing it with maximum
information as to the circumstances underwhich the offence was committed and any
previous criminal record that the convict
may have. Any recommendations as tosentencing, general or detailed, are notbinding on the court.
VII. THE RIGHT TO APPEAL
Where the State Counsel is dissatisfied
with the judgement due to any violation oflegal provisions or inappropriate
sentencing, he may refer the judgement to
the Court of Appeal for review.
VIII. CONCLUSION
The harmonisation of the legal systems
and the judicial reform referred to earlier
are both ambitious and by no means easy
objectives to attain. There are numerous,
political, social and legal considerations toaddress and sometimes divergent interests
to reconcile. The political authorities at
the highest level of the State haveexpressed their commitment to see theprocess through, and laudable efforts arebeing made to secure necessary funding.
While awaiting the successful
completion of the process, the necessity forthe effective and diligent execution of theirrespective duties by the personnel involved
with prosecution at different levels cannot
be overemphasized. Moral integrity should
be a prerequisite for integration into them a g i s t r a c y, a n d t h e v i o l a t i o n o fprofessional ethics should be severely
sanctioned. Pecuniary and otherprofessional incentives should be afforded
to the personnel of the legal department
and investigative agencies, so as to prevent168

and abate corruption as well as other forms
of professional malpractice. There is a needfor increased cooperation within the
Magistracy and the investigative agencies
and greater collaboration with otherservices involved in the different phases of
the administration of criminal justice.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

THE POSITION AND ROLE OF CHINESE PROCURATORIAL
ORGANS IN CRIMINAL JUSTICE
Guan Fujin*
I. PEOPLE’S PROCURATORATESARE STATE ORGANS FOR LEGALSUPERVISION AND EXERCISEPROCURATORIAL POWER
INDEPENDENTLY
Article 129 of the Constitution of thePeople’s Republic of China and Article 1 oft h e O r g a n i c L a w o f t h e P e o p l e ’s
Procuratorates of the People’s Republic ofChina stipulate that “the people’s
procuratorates of the People’s Republic ofChina are state organs for legal
supervision.” According to the law, thestate makes it clear that people’s
procuratorates are state organs for legal
supervision and exercise the right of legal
supervision on behalf of the state. This is
the legal position of the Chinese
procuratorial organs.
The Chinese procuratorial organs shall
exercise procuratorial power independently
and shall not be subject to interference.
Procuratorial organs perform theirfunctions and powers independently
according to the law. This is the mostimportant principle for legal supervision
defined by the Constitution of the People’s
Republic of China. Article 131 of theConstitution of the People’s Republic ofChina clearly stipulates that “people’s
procuratorates shall, in accordance withthe law, exercise procuratorial power
independently and are not subject tointerference by administrative organs,public organizations or individuals.” The
Criminal Procedure Law and the Organic* Deputy Director of Department, General Bureauof Anti-Corruption and Bribery, Supreme People’s
Procuratorate, China.

Law of the People’s Procuratorates of thePeople’s Republic of China also have thesame provisions. We can understand thisprinciple in four aspects. First,
procuratorial power is a state power
exclusively exercised by procuratorialorgans, and no administrative organs,public organizations and individuals havethe right to exercise it. This is therequirement set by the particularity andseriousness of procuratorial power. Neitherorgans, public organizations andindividuals which are not state organs nor
state organs which are not procuratorialorgans have the right to exercise
procuratorial power. Second, when
procuratorial organs exercise procuratorial
power, they only obey the Constitution andstate laws and are not subject tointerference by administrative organs,public organizations and individuals. In
practical procuratorial work, procuratorialorgans shall not be subject to interferenceby other administrative organs’
administrative orders which affect theexercise of procuratorial power and byother public organizations and someindividuals with special privileges. Thisis the key to ensuring the fair and effective
exercise of procuratorial power. Third,procuratorial organs must exercise
procuratorial power according to their legal
functions, powers and methods and cannot
abuse it. The criminal, civil andadministrative procedure laws and a series
of internal regulations on procuratorial
work formulated by the Supreme People’s
Procuratorate contain concrete provisions
on the procuratorial functions and powers
of procuratorial organs and the procedures
and methods for exercising legal

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RESOURCE MATERIAL SERIES No. 53
supervision. Violating these regulations
and abusing procuratorial power will
impair the socialist legal system, and legal
responsibility will be investigated andaffixed. Fourth, procuratorial organs
exercise procuratorial power
independently. This means that people’s
procuratorates at all levels exercise
procuratorial power independently. This
does not mean that chief procurators orother public procurators personallyexercise procuratorial power
independently. This shows that democratic
centralism is applied in exercising legal
supervision. This also ensures the correct
exercise of procuratorial power and avoids
the personal abuse of procuratorial power.
II. INVESTIGATING CRIMINALCASES PERPETRATED BY TAKINGADVANTAGE OF THE OFFICE IS AN
IMPORTANT DUTY OF
PROCURATORIAL ORGANS
The filing of criminal cases of corruption
and bribery perpetrated by taking
advantage of an office for purposes ofinvestigation and prosecution is a part of
all the rights enjoyed by the Chinese
procuratorial organs. Article 18 of the
Criminal Procedure Law of the People’s
Republic of China, currently in effect,
stipulates that “with regard to the crimeof corruption and bribery, the crime ofdereliction of duty committed by state
personnel, the crime of illegal detention,
extorting a confession by torture,
retaliation and framing and illegal search
to infringe on citizens’ right of the person
committed by state personnel who takeadvantage of their functions and powers
and the crime of infringement on citizens’
democratic rights, people’s procuratorates
shall file such criminal cases forinvestigation.”
According to the provisions of theConstitution of the People’s Republic ofChina and the Organic Law of the People’s

170

Procuratorates of the People’s Republic ofChina, statically the legal supervision
exercised by procuratorial organs is asystem under which people’s
procuratorates exercise procuratorial
supervision over the implementation andobservance of state laws, and dynamically
it is an activity in which people’s
procuratorates exercise procuratorial
supervision with a view to ensuring thecorrect implementation and strict
observance of state laws. The scope of legal
supervision are as follows:(1) Procuratorial organs exercise
supervision to determine whether
state organs and their personnel
correctly apply and enforce the laws;
and(2) Procuratorial organs exercise
supervision to determine whether
ordinary citizens abide by state laws.
The first is the major task of legal
supervision exercised by procuratorialorgans. Of course, procuratorial organs
exercise supervision over the crimecommitted by taking advantage of theoffice. Such supervision is an importantcomponent of legal supervision. There arethree reasons for this. First, when stateorgans apply and enforce the laws, in factstate personnel do this. In other words,
all activities to apply and enforce the laws
cannot be conducted without the personnel
in state organs.
Second, procuratorial organs exercise
supervision over the application andenforcement of the laws by state organs andtheir personnel with a view to discovering,
investigating and dealing with violationsof state laws in the process of applying andenforcing the laws. The activities to apply
and enforce the laws will be conducted
through the acts of state personnel.
Therefore, in investigating and dealing
with violations of the laws in the processof applying and enforcing the laws, we focus
on violations of state laws perpetrated by

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
state personnel in the process of applying
and enforcing the laws. Some of theviolations of the laws perpetrated by state
personnel are ordinary acts in violation of
the law, and some seriously impair theinterests of the state, the collective and thecitizens and constitute crime, that is, thecrime committed by taking advantage ofthe office. Therefore, when procuratorialorgans exercise supervision over theapplication and enforcement of the laws bystate organs and their personnel, of course
this supervision includes supervision overthe crime committed by taking advantageof the office.
Third, state personnel administer thestate and society on behalf of the masses
and should exercise management in strict
accordance with the law. However, somestate personnel do not strictly abide by andcarry out the Constitution and the laws in
the process of performing their official
duties, but wilfully violate the Constitution
and the laws. People’s procurorates
exercise legal supervision to ensure thecorrect implementation of state laws.
Therefore, people’s procuratorates must
control the crime committed by taking
advantage of the office, which is seriously
divorced from the legal system and rectify
violations of the law. Such crime causes
more serious harm to the correct
application and enforcement of state laws
than ordinary illegal acts perpetrated bytaking advantage of the office. Therefore,
supervision over the crime committed bytaking advantage of the office is more
important than supervision over ordinary
illegal acts occurring in the application andenforcement of laws.
Supervision over the crime committed bytaking advantage of the office is designed
to determine whether or not such crime
occurs, give proper punishment for it,
prevent and reduce it, and ensure thecorrect application and enforcement ofstate laws. People’s procuratorates
exercise supervision over such crime which

has occurred, which is a kind of subsequent
supervision. This feature of supervision
over the crime committed by taking
advantage of the office determines that
conducting investigation is the necessarymeans to supervise it.
First, we can discover the crimecommitted by taking advantage of the office
only through investigation. Clues to thecriminal cases perpetrated by taking
advantage of the office come from various
channels. However, clues only show thatthe criminal cases committed by taking
advantage of the office may have occurred,
but do not mean that they have occurred
and that the offenders and thecircumstances of such crimes are known tothe public. Only by investigation canpeople’s procuratorates finally determine
whether or not such crimes have occurred,
who the offenders are and what thecircumstances of crimes are. In this way,such crimes can be exposed promptly andcan be placed under the supervision of
procuratorial organs.
Second, only by investigation canpeople’s procuratorates discover anddetermine the crimes committed by taking
advantage of the office and transfer thecriminal cases perpetrated by taking
advantage of the office to the adjudicatoryorgans for trial, so that offenders will be
g i v e n d u e p u n i s h m e n t . P e o p l e ’s
procuratorates cannot clarify the facts ofthe crime committed by taking advantageof the office without investigation andconsequently cannot transfer the cases tothe courts for trial. Prosecution of thecrime committed by taking advantage ofthe office will become empty talk.
Third, supervision over the crimecommitted by taking advantage of the office
is different from legal supervision overother ordinary crimes. Legal supervision
over other ordinary crimes can be exercisedby means of arrest and prosecution, andspecial investigative organs (public
security organs) which conduct

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investigation. However, public security
organs cannot first investigate the crimecommitted by state personnel by taking
advantage of the office and then transfering
the criminal cases to procuratorial organs
for handling. This is determined by thefollowing features of the crime committed
by taking advantage of the office:(1) The subject of the crime committed
by taking advantage of the office isstate personnel. Most of thepersonnel have some administrative
powers, and some are senior officials.
They have close social relations in
administrative organs, and they areprotected by other officials. The
organs for investigating their crimes
can only be special organs which are
not administrative organs. It would
be futile for public security organs,which are administrative organs, toinvestigate the crime committed bystate personnel who haveadministrative powers and takeadvantage of their office.
(2) Offenders have a high educational
level and professional knowledge,
make use of intelligence in criminal
activities and often take advantageof their legal capacities. Thesecriminal cases are more covert andcunning than other criminal cases.
(3) Unlike homicide, theft and otherordinary criminal cases, it is hard todifferentiate between guilt andinnocence concerning the crimecommitted by taking advantage of theoffice. Therefore, this sets highdemands on the knowledge about law
which the personnel for handlingcases must master. In our country
procuratorial organs, administrative
organs and adjudicatory organs areequally important. Procuratorialorgans exercise procuratorial power
independently. According to theprovisions of the Public Procurator
Law, public procurators must be

172

university graduates. Therefore, thepower to investigate the crime ofembezzlement and bribery
committed by taking advantage of theoffice can only be exercised by
procuratorial organs. Investigationof the criminal cases perpetrated bytaking advantage of the office is thenecessary means for procuratorialorgans to exercise supervision overthe such crime.
III. PROCURATORIAL ORGANSEXERCISE SUPERVISION OVER
CRIMINAL PROCEEDINGSACCORDING TO THE LAW
In criminal proceedings, people’s
procuratorates are special organs for legal
supervision which perform the functions
and powers of legal supervision.
Exercising legal supervision todetermine whether litigation proceeds
impartially according to the law is the
special function and power entrusted to
procuratorial organs by the law. According
to the law, people’s procuratorates exercise
legal supervision over criminal proceedings
in such concrete ways as reviewing a caseto make a decision to approve arrest,
examining prosecution, and appearing incourt for public prosecution. In otherwords, people’s procuratorates successfully
exercise legal supervision by handlingcases. Handling cases is the most effectivemeans for procuratorial organs to exercise
legal supervision. Procuratorial organs’
functions and powers in litigation comefrom legal supervision, and legal
supervision is successfully exercised inlitigation.
A. Supervision over Filing Cases
The Criminal Procedure Law of thePeople’s Republic of China stipulates thatpeople’s procuratorates exercise
supervision over filing cases mainly in thefollowing two aspects:

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
1. Article 87 of the Criminal Procedure
L a w s t i p u l a t e s t h a t “ i f a p e o p l e ’s
procuratorate thinks that a public security
organ does not file a case for investigation
which should be filed for investigation or
if a victim thinks that a public security
organ does not file a case for investigation
which should be filed for investigation andp r e s e n t s t h e c a s e t o t h e p e o p l e ’s
procuratorate, the people’s procuratorate
should require that the public security
organ explain the reasons for not filing thecase. If the people’s procuratorate thinksthat the reasons for not filing the case givenby the public security organ are untenable,
the former should send a notice of filingthe case to the latter. After the public
security organ receives the notice, it should
file the case.”
From this regulation, we can know thefollowing things:(1) In exercising supervision over filingcases, people’s procuratorates should
focus on the cases which public
security organs should file forinvestigation, but do not file.
(2) A people’s procuratorate has the rightto require that a public security organ
explain the reasons for not filing acase.
(3) If the public security organ’s reasonsfor not filing the case are untenable,
the people’s procuratorate should
send a notice of filing the case to the
public security organ. The notice ismandatory, so the public security
organ must carry it out.
(4) After the public security organ
receives the notice, it must file thecase which should be filed. Thisshows that procuratorial organs
perform the function of prosecuting
crimes on behalf of the state. This isalso a necessary reflection of
procuratorial organs’ rights ofsupervision and public prosecution.
In applying this regulation, people’s
procuratorates should focus on thecases which public security organs do
not file for investigating and affixing
legal responsibility for crimes. Suchcases mainly come from those cases
which are discovered by people’s
procuratorates in the process ofreviewing cases to make decisions toapprove arrest and prosecution,
which are presented to people’s
procuratorates by victims and which
are entrusted or transferred by therelevant departments under special
circumstances.
2. Article 18 of the Criminal Procedure
Law stipulates that “when people’s
procuratorates need to directly handle
other major criminal cases perpetrated by
the personnel in state organs who takeadvantage of their functions and powers,
with the decision of people’s procuratorates
at and above the provincial level, people’s
procuratorates can file them forinvestigation and prosecution.”
These cases mainly have the following
three characteristics:(1) The subject of crime is personnel instate organs.
(2) These cases must be major cases
perpetrated by state personnel who
take advantage of their functions andpowers.
(3) The filing of these cases must be
specially examined and approved,that is, with the decision of people’s
procuratorates at and above theprovincial level. This regulation gives
people’s procuratorates the right tosupervise cases in the process of filingand conducting investigation, with aview to giving full play to people’s
procuratorates’ functions of legal
supervision, solving the problems of
not filing cases even if there are cases,
not investigating and affixing legal
responsibility for crimes andreplacing penalty with fines incriminal judicial practice and173

RESOURCE MATERIAL SERIES No. 53
ensuring that the criminal
responsibility of all criminals isinvestigated and affixed. By doingso, people’s procuratorates exercise
the right of prosecution for somecases. This does not mean thatpeople’s procuratorates exclusively
exercise the right of investigation
enjoyed by other organs. People’s
procuratorates exercise supervision
with a view to tightening supervision
over law enforcement, promoting
strict law enforcement and ensuring
the unified and correct
implementation of state laws.
In light of judicial practice, such cases
mainly include the following:(1) Cases perpetrated by the personnel
in state organs which the relevantorgans do not file to investigate andaffix legal responsibility and which
the relevant organs still do not affix
even if people’s procuratorates send
notices of filing cases forinvestigation;(2) Cases in which fines replace penalty,
which are handled too leniently andin which the relevant organs still do
not rectify illegalities even if people’s
procuratorates urge the relevantorgans to rectify them;(3) Cases in which people do not reach aconsensus on whether these cases
constitute crimes and people’s
procuratorates think it necessary toinvestigate and affix legal
responsibility according to the law;(4) Cases involving several crimes, ofwhich some crimes fall under thejurisdiction of people’s
procuratorates, and others fall under
the jurisdiction of public security
organs or other departments, overwhich people’s procuratorates haveproper jurisdiction or which the latter
persist in not handling;

174(5) Cases in which there are disputes
over jurisdiction, or in which theorgans with the right of jurisdiction
refuse to investigate or do not file forinvestigation for a long time; and(6) Cases in which specific organizations
entrust the people’s procuratorates
directly to file for investigation andprosecution.
This last regulation is a flexible
regulation on people’s procuratorates’
direct filing of cases for investigation andprosecution. People’s procuratorates
should strictly carry out this regulation andcannot arbitrarily increase cases directly
handled by them. With regard to theordinary cases in which public security
organs should file for investigation, but do
not file, people’s procuratorates should
require that public security organs explain
the reasons for not filing them. If people’s
procuratorates think that the reasons for
not filing cases given by public security
organs are untenable, the former should
notify the latter of filing cases and thelatter should do so. In principle, public
security organs should file such cases forinvestigation. If public security organs giveup filed cases which indeed have great
impact, cause serious consequences andconform to this regulation, people’s
procuratorates can file them forinvestigation and prosecution according tothis regulation.
B. Supervision over Carrying out
Arrest Decisions
Article 68 of the Criminal Procedure Lawof the People’s Republic of China stipulates
that “after conducting a review of a casethat a public security organ has submitted
f o r a p p r o v a l o f a r r e s t , a p e o p l e ’s
procuratorate, according to the differing
circumstances, shall make a decision toapprove arrest or not to approve arrest.
The public security organ should
immediately carry out the decision to107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
approve arrest and should promptly notify
the people’s procuratorate to explain thereasons for not approving arrest. If there
is a need to conduct supplementary
investigation, the people’s procuratorate
should notify the public security organ for
doing so.” Article 69 stipulates that “incases where the people’s procuratorate does
not approve the arrest, the public security
organ shall, immediately after receiving
the notice, release the detained person andshould promptly notify the people’s
procuratorate of the circumstances of therelease.” Article 73 stipulates that “if apeople’s court, a people’s procuratorate anda public security organ discover that
improper coercive measures are taken to
deal with a suspect or a defendant, theyshould promptly abandon or change them.
If a public security organ releases thearrestee or changes the arrest measures,it should notify the people’s procuratorate
which originally approved the arrest.”
According to these regulations, thep e o p l e ’s p r o c u r a t o r a t e s e x e r c i s esupervision over carrying out arrest
decisions in the following aspects:(1) P u b l i c s e c u r i t y o r g a n s m u s t
immediately carry out the decisions
to approve the arrest made bypeople’s procuratorates and should
promptly notify people’s
procuratorates of the circumstances
for carrying them out. The
circumstances for carrying out thesedecisions include whether or notoffenders have been seized andarrested, where they are detained,
and the explanation of the reasons for
failure to arrest offenders if they are
not seized.
(2) P u b l i c s e c u r i t y o r g a n s m u s t
immediately release detained
persons if procuratorial organs decide
not to approve arrest and should
promptly notify people’s
procuratorates of the circumstancesof the release, such as whether or notsuspect is released and such coercive
measures as allowing a suspect toobtain a guarantor and await trial outof custody and allowing him to live
at home under surveillance should betaken.
(3) If public security organs discover that
improper coercive arrest measures
have been taken to deal with suspects
and abandon and change coercivearrest measures, they should notify
the people’s procuratorates which
originally approved the arrest. If
people’s procuratorates hold different
views, they can urge public security
organs to rectify improper coercive
measures.
(a) Reviewing cases and making
decisions to approve arrest are thefunctions of procuratorial organs,and other organs cannot makesuch decisions arbitrarily;(b) The organs for executing arrest
must immediately carry out arrest
decisions; and(c) Efforts should be made to tighten
supervision over carrying out
arrest decisions.
The
circumstances for arrest, releasing
detained persons and changing
coercive measures should bereported
to people’s
procuratorates promptly.
After people’s procuratorates decide
whether or not to approve an arrest, theyshould pay great attention to tightening
supervision over the notices and activities
concerning public security organs’ carryingout arrest decisions, releasing arrested
suspects or changing coercive measures. If
p e o p l e ’s p r o c u r a t o r a t e s d i s c o v e rillegalities, they should request public
security organs to rectify them. If public
security organs improperly change arrest
measures and release arrested suspects, orafter people’s procuratorates urge public
security organs to rectify their mistakes

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and public security organs do not do so,people’s procuratorates should make arrest
decisions and request public security
organs to carry them out.
C. Supervision over Investigation
People’s procuratorates exercise legal
supervision according to the law todetermine whether the criminal
investigation conducted by public security
organs is legal. They exercise supervision
throughout the process of investigation
conducted by public security organs,including collecting evidence and taking
coercive measures to arrest criminal
suspects. Such supervision seeks to
identify mainly the following:(a) Extorting a confession from a suspect
and inducement leading toconfession;(b) Obtaining testimony and collecting
evidence from victims and witnesses
through such illegal means as
physical punishment, threat andinducement;(c) Falsifying, concealing, destroying,changing and obliterating evidence;(d) Intentionally creating injustices;(e) Engaging in misconduct to seek
selfish ends, conniving with andharbouring offenders;(f) Taking advantage of the office to seek
illegal interests in the process ofinvestigation and preliminary trial;(g) Embezzling, misappropriating andchanging illegally acquired money
and goods and interest;(h) Taking, carrying out, changing andinvalidating measures andregulations in violation of the
Criminal Procedure Law;(i) Violating the regulations on the timelimit for handling cases; and(j) Perpetrating other acts in violationof the relevant provisions of the
Criminal Procedure Law.

176

People’s procuratorates exercise
supervision over investigation by reviewing
cases to make decisions to approve arrest
and examining prosecution. Meanwhile,
in participating in the investigation
conducted by public security organs,undertaking supplementary investigationof cases and handling offence-reporting andaccusations, people’s procuratorates candiscover illegal acts perpetrated by public
security organs in the process ofinvestigation. People’s procuratorates
should conscientiously examine theapplications for withdrawal of the
responsible persons in public security
organs and send personnel to participate
in discussions of major cases held by public
security organs, if necessary. If in
reviewing cases people’s procuratorates
think it necessary to conduct reinspection
and re-examination concerning theinspection and examination undertaken by
public security organs, they can requirethat public security organs conduct
reinspection and re-examination and canalso send procuratorial staff to participate
in reispection and re-examination. With
regard to the illegal acts which have been
discovered, people’s procuratorates canorally notify public security organs torectifying them or send the Notices ofRectifying Illegal Acts. If the circumstances
are serious and the cases constitute crimes,
people’s procuratorates should investigate
and affix criminal responsibility according
to the law.
D. Supervision over Adjudication
Article 169 of the Criminal Procedure
L a w s t i p u l a t e s t h a t “ i f p e o p l e ’s
procuratorates discover that people’s courts
violate the litigation procedure prescribedby the law in trying cases, they have theright to notify people’s courts of rectifying
the wrong acts.” We should understandthis regulation in two aspects.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
First, the legal supervision over thepeople’s courts’ trial of criminal cases andover court hearings exercised by people’s
procuratorates is the function and powerof people’s procuratorates, which function
as state organs for legal supervision.
People’s procuratorates should perform thisfunction and power, and public procurators
cannot simply exercise this function andpower personally. Therefore, people’s
procuratorates should exercise thissupervision according to some prescribed
procedures and request people’s courts torectify the wrong acts.
Second, in court hearings, people’s
procuratorates should supervise thepeople’s courts’ violation of the relevant
procedures prescribed by the Criminal
Procedure Law in trying cases. Whenpublic procurators discover that people’s
courts violate the litigation procedure
prescribed by the law in court hearing, theyshould promptly report this to theirprocuratorates and request people’s courts
to rectify mistakes in the name of people’s
procuratorates. People’s courts shoulda c c e p t t h e o p i n i o n s o f p e o p l e ’s
procuratorates, promptly rectify theirm i s t a k e s , a n d n o t i f y t h e p e o p l e ’s
procuratorates of the circumstances of therectification.
It should be pointed out that theprovisions of the law do not require thatp e o p l e ’s p r o c u r a t o r a t e s e x e r c i s esupervision over court hearings in written
form after the court adjourns. If a public
procurator who appears in court discovers
that the court hearing seriously violates thelitigation procedure prescribed by the law,in the court he can put forward his opinions
to the court. If the court does not accept
his opinions and the violation of thelitigation procedure prescribed by the law
may affect the fair trial, the public
procurator can request for the adjournmentof the hearing. After he reports this to thechief procurator (except for the case inwhich the chief procurator appears incourt), he can request the court to rectify
its mistakes in the name of the
procuratorate. Supervision over court
hearings is a component of the right of legal
supervision, that is, procuratorial power.
People’s procuratorates should exercise thisright, and individual public procurators
should exercise legal supervision according
to Article 6 of the Public Procurator Law.
Public procurators perform their duties,
thereby enabling people’s procuratorates toperform their functions and powers of legal
supervision. When public procurators
appear in court, people’s procuratorates
entrust the task of supervision over court
hearings to them. When public prosecutors
appear in court, they can put forward theiropinions about the violation of theprocedure prescribed by the Criminal
Procedure Law in the process of court
hearing. If a collegiate bench is formed
illegally or if a case which should not be
tried in public is tried in public, thelitigants have the right to apply forwithdrawal and put forward their opinions
about the relevant problems in the court
trial. If public procurators discover thatthe procedures violate the provisions of thelaw in the court trial, they can put forward
their opinions to the court. This isbeneficial to rectifying mistakes promptly
and ensuring a fair and legal court trial.
This does not impair the dignity of thecourt.
E. Supervision over the Executionof Punishment
Article 215 of the Criminal Procedure
Law stipulates that “the organ whichapproves temporary execution of a sentenceoutside prison should send a copy of thea p p r o v e d d e c i s i o n t o a p e o p l e ’s
procuratorate. If the people’s procuratorate
thinks it improper to temporarily executea sentence outside prison, it should giveits written opinion to the organ whichapproves temporary execution of a sentenceoutside prison within one month from the177

RESOURCE MATERIAL SERIES No. 53
day it receives the notice. After the organ
which approves temporary execution of asentence outside prison receives thewritten opinion given by the people’s
procuratorate, it should immediately
reexamine the decision.”
Article 222 of the Criminal Procedure
L a w s t i p u l a t e s t h a t “ i f a p e o p l e ’s
procuratorate thinks that a people’s court
improperly makes a decision on a reductionof sentence or parole, it should give its
written opinion about rectifying mistakes
to the people’s court within 20 days after
the former receives a copy of the decision.
The people’s court should form anothercollegiate bench to try the case within one
month after it receives the written opinion
about rectifying mistakes and gives final
ruling.”Article 224 of the Criminal Procedure
L a w s t i p u l a t e s t h a t “ t h e p e o p l e ’s
procuratorate exercises supervision todetermine whether or not the execution ofpunishment by the executing organ is legal.
If the people’s procuratorate discovers
illegalities, it should notify the executingorgan of rectifying them.” According to theprovisions of the law, the procuratorialorgans supervise the execution ofpunishment by the executing organs, suchas prisons and organs responsible forsupervising and controlling offenders. The
scope of supervision does not include theother activities of the organs responsible
for supervision and controlling offenders,such as production and life. The
procuratorial organs exercise procuratorial
supervision over illegal acts which occur
in execution of a sentence, control of thet e r m o f p e n a l t y, i m p r i s o n m e n t
management, change in the execution of asentence, termination of the execution of asentence and management of supervisionand control of offenders exercised by the
executing organs.

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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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RESOURCE MATERIAL SERIES No. 53
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

182

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.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

THE ROLE AND FUNCTION OF PROSECUTION IN
CRIMINAL JUSTICE
Madan Lal Sharma*
I. INTRODUCTION
India is a Union of States and isgoverned by a written constitution whichcame into force on 26 November 1949.
India consists of 25 states and 7 Union
Territories. Due to its colonial heritage,
India follows the Anglo-Saxon common law
justice system. Article 246 of theConstitution provides for three lists which
are enumerated in 7th Schedule of theConstitution. List-1 is the Union List
which enumerates the subjects on which
the Parliament of India has exclusive
power to make the laws. List-2 is the State
List which enumerates the subjects on
which the legislature of a state has thepower to make laws. The third list is theConcurrent List which enumerates
subjects on which both the IndianParliament and the Legislatures of thestate can enact laws, but if there is any
conflict or inconsistency between the laws
made by the Indian Parliament and thelegislature of any state, the law enacted
by the Union Parliament will have overriding effect. Importantly, the “Public
Order” and the “Police” are enumerated in
Entries 1 and 2 respectively of the State
List, meaning thereby that all mattersrelating to the organisation, structure andregulation of the police force fall within theambit of the states. However, the ‘Criminal
Laws’and the ‘Criminal Procedure’ areenumerated in List-3, i.e., the Concurrent
List. Both the Indian Parliament and statelegislatures have the powers to makesubstantive and procedural laws in* Joint Director, Central Bureau of Investigation,
India.

criminal matters. The states can also enact
laws on local and special subjects. Thus,
under the constitutional scheme, the basic
criminal laws, i.e., the Indian Penal Code,the Code of Criminal Procedure and theIndian Evidence Act have been enacted by
the Indian Parliament. The Indian Police
Act has also been enacted by the IndianParliament. The states have also enacted
laws on several local and special subjects.
Some states in India have also enacted
their own Police Acts. The Indian Police
Act, 1861, however, is the basic statutory
law governing the constitution andorganisation of police forces in the states.
Article 14 of the Constitution provides
for equality before law. Article 21
guarantees protection of life and personal
liberty. Article 20 provides protection
against double jeopardy. No person can beprosecuted and punished for the sameoffence more than once. Article 39-A
mandates the states to secure equal justicefor all. It also provides for free legal aid inrespect of indigent persons. Article 50 isimportant as it provides for the separationof the judiciary from the executive in the
public services of states.
II. DISTRICT—THE BASIC UNIT OFADMINISTRATION
In each state, there are a number of
districts. The District is governed by atriumvirate consisting of the District
Magistrate, the District Superintendent of
Police and the District and Sessions Judge.
The District Magistrate is the chief
executive officer of the district and hebelongs to the Administrative Service. The
police in the district functions under his
general direction and control. The District
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RESOURCE MATERIAL SERIES No. 53
Superintendent of Police is the head of thepolice force in a district. He is responsible
for the prevention and detection of crime
and the maintenance of law and order,
subject to such directions as may be issued
by the District Magistrate. In practicalterms, the District Magistrate has no rolein criminal investigations. The District andSessions Judge is the head of the judiciaryin a district. He belongs to the higher state
judicial service. The entire magistracy inthe district functions under his control andsupervision.
III. CRIMINAL JUSTICE SYSTEM
The criminal justice system has four
important components in India, namely,
the Investigating Agency (Police), theJudiciary, the Prosecution Wing and thePrison and Correctional Services. A brief
mention of their structure and their roles
is made here below:
A. Investigating Agency
The police forces are raised by the state
under the Indian Police Act, 1861. The
basic duty of the police forces is to register
cases, investigate them as per theprocedure laid down in the Code of
Criminal Procedure (to be referred to as
the Code hereinafter) and to send them up
for trial. In addition to the State Police
Forces, the Government of India hasconstituted a central investigating agency
called the Central Bureau of Investigation(CBI) under the special enactment called
the Delhi Special Police Establishment Act,
1946. It has concurrent jurisdiction in thematters of investigation in the Union
Territories. It can take up the investigationof cases falling within the jurisdiction of
the states only with the prior consent of
the state governments concerned. Thereare certain other specialised investigating
agencies constituted by the central
government, in various departments,
namely, the Customs Department, theIncome Tax Department, the Enforcement
186

Directorate, etc. They investigate cases
falling within their jurisdictions andprosecute them in the courts of law.
Thus, India has both the state police
investigating agencies and a central
investigating agencies as mentioned above.
CBI, however, is the primary investigating
agency of the central government.
B. The Courts
The cases instituted by the state police
and the Central Investigating Agency are
adjudicated by the courts. We have a fourtier structure of courts in India. At thebottom level is the Court of Judicial
Magistrates. It is competent to try offences
punishable with imprisonment of three
years or less. Above it is the Court of Chief
Judicial Magistrates, which tries offences
punishable with less than 7 years. At the
district level, there is the Court of District
and Sessions Judge, which tries offences
punishable with imprisonment of morethan 7 years. In fact, the Code specificallyenumerates offences which are exclusively
triable by the Court of Sessions.
The highest court in a state is the High
Court. It is an appellate court and hears
appeals against the orders of conviction or
acquittal passed by the lower courts, apartfrom having writ jurisdiction. It is also a
court of record. The law laid down by theHigh Court is binding on all the courts
subordinate to it in a state.
At the apex, there is the Supreme Courtof India. It is the highest court in the
country. All appeals against the orders ofthe High Courts in criminal, civil and othermatters come to the Supreme Court. This
Court, however, is selective in its approachin taking up cases. The law laid down by
the Supreme Court is binding on all the
courts in the country.
C. Prosecution Wing
It is the duty of the state to prosecutecases in the courts of law. The state
governments have constituted cadres of107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
public prosecutors to prosecute cases atvarious levels in the subordinate courts andthe High Court. I will revert to the subject
later when I discuss the structure andfunctioning of the prosecution wings in thestates and the central governments.
D. Prisons and Correctional
Services
This is the fourth important element in
the criminal justice system. The prisonsin India are under the control of the state
governments and so are the correctional
services.
IV. CONSTITUTION AND
STRUCTURE OF PROSECUTION
WING
As stated above, the police is a state
subject in our constitutional scheme. The
primary investigative unit is the police
station in India. After due investigation,
charge-sheets are filed in the courts
concerned as per the provisions of the Code.
The cases are prosecuted by the publicprosecutors appointed by the state
governments.
Prior to the enactment of the Criminal
Procedure Code of 1973, public prosecutors
were attached to the police department andthey were responsible to the District
Superintendent of Police. However, after
the new Code of Criminal Procedure cameinto force in 1973, the prosecution wing has
been totally detached from the police
department. The prosecution wing in astate is now headed by an officer designatedas the Director of Prosecutions. In some ofthe states, he is a senior police officer andin others, he is a judicial officer of the rankof District and Sessions Judge. He is
assisted by a number of Additional
Directors, Deputy Directors and Assistant
Directors, etc.
At the district level, there are two levelsof public prosecutors, i.e., the AssistantPublic Prosecutor, Grade-I and theAssistant Public Prosecutor, Grade-II.

They appear in the Courts of Magistrates.
The Director of Prosecutions is responsible
for the prosecution of cases in the
Magisterial Courts.
In Sessions Courts, the cases areprosecuted by Public Prosecutors. The
District Magistrate prepares a panel ofsuitable lawyers in consultation with theSessions Judge to be appointed as publicprosecutors. The state government
appoints public prosecutors out of the panel
prepared by the District Magistrate andthe Sessions Judge. It is important tomention that public prosecutors who
prosecute cases in the Sessions Courts do
not fall under the jurisdiction and controlof the Director of Prosecutions.
The state government also appoints
public prosecutors in the High Court. The
appointments are made in consultation
with the High Court as per section 24 of
the Code.
The most senior law officer in a state is
the Advocate General who is aconstitutional authority. He is appointed
by the governor of a state under Article 165.
He has the authority to address any courtin the state.
Under section 24 of the Cr.P.C., thecentral government may also appoint one
or more public prosecutors in the High
Court or in the district courts for the
purpose of conducting any case or class ofcases in any district or local area. The mostsenior law officer of the Government ofIndia is the Attorney General for India, who
is a presidential appointee under Article
76. He has the authority to address any
court in the country.
The Assistant Public Prosecutors,
Grade-I and Grade-II, are appointed by astate government on the basis of acompetitive examination conducted by theState Public Service Commission. They arelaw graduates falling within a specified age
group. They join as Assistant Public
Prosecutors Grade-II and appear in the
Courts of Magistrates. They are promoted

187

RESOURCE MATERIAL SERIES No. 53
to Assistant Public Prosecutors, Grade-I,
and generally appear in the Courts of Chief
Judicial Magistrates. On further
promotion, they become Assistant Directorsof Prosecution and can go up to the level of
Additional Director of Prosecution. They,
however, do not appear in the Sessions
Court.
As mentioned above, the District
Magistrate in consultation with theSessions Judge prepares a panel of lawyers
with a minimum of 7 years of experience
to be appointed as public prosecutors. They
are so appointed by the state government.
They plead the cases on behalf of the state
government in the Sessions Courts. They
have tenure appointments and are notpermanent employees of the state
government. They are paid an honorarium(not salary) by the state government.
There is now a move to integrate theaforesaid two cadres of public prosecutors
with the object to improving the promotion
prospects of law officers who join at thelowest level, i.e., Assistant Public
Prosecutor, Grade-II. The idea is topromote the Assistant Public Prosecutors,
Grade-I to Additional Public Prosecutor or
Public Prosecutor, as the case may be, toplead cases in the Sessions Court. If it
comes about, this will obliterate the needfor appointing lawyers from the open
market as public prosecutors to plead casesin the Sessions Courts.
V. PROSECUTION BY CBIThe Central Bureau of Investigation has
a Legal Division which plays an advisoryand prosecutory role in the organisation.
It is headed by a Legal Advisor, who is a
deputationist from the Ministry of Law of
the central government. This arrangement
ensures objectivity of his office. He is
assisted by a number of Law officers whoare permanent employees of the CBI,
namely, Additional Legal Advisor, Deputy
Legal Advisors, Senior Public Prosecutors,

188

Public Prosecutors, Assistant Public
Prosecutors, etc. These are indicated indescending order of seniority and rank.
These officers render legal advice to theinvestigating officers during the course ofinvestigations as to the viability of
proposed prosecutions. Their advice istaken seriously, but they can be over-ruledby the executive CBI officers. Multiple andhierarchical systems of legal advice
prevails in the CBI. Legal advice is taken
at least at three levels before deciding thefate of a case. After a decision has beentaken to prosecute a case, the law officers
conduct the prosecution of cases in the
courts. The level of a law officer toprosecute a case is directly related to thelevel of the court, i.e., the higher the court,
the higher the rank of a law officer toprosecute it.
Besides, the CBI also engages Special
Public Prosecutors from the bar on a daily
fee basis in important and sensational
cases.
VI. CRIME SCENARIO IN INDIA
In order to analyse the role of publicprosecution, it is essential to have someidea about the crime situation prevailingin India. Table 1 gives the total crimes
registered under the Indian Penal Code in
India (hereinafter IPC) and the share ofviolent crimes there.
Table 1 shows that the IPC increased by
168.3 per cent in 1991 compared to 1961.
The percentage increase during the decade
1981 to 1991 was 21.1 per cent. The crime
increased by 4.7 per cent in 1995 compared
to 1994.
Apart from crimes under the IPC thepolice also registers cases under the local
and special laws (to be called SLL
hereinafter). It would be expedient to havea look at the volume of crimes under the
IPC and the SLL as also the rate of crimes(rate of crime is defined as crime per 1.00
lac of population).

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Table 1
Year
1953
1961
1971
1981
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995

Total Cognizable
Crimes (IPC)
601,964
625,651
952,581
1,385,757
1,405,835
1,406,992
1,440,356
1,529,844
1,604,449
1,678,375
1,689,341
1,629,936
1,635,251
1,695,696

Violent Crimes
Incidence% Total49,5788.2
55,726
8.9
124,380
13.1
193,224
13.9
182,11913.0
179,78612.8
203,58914.1
217,31114.2
234,33814.6
246,25214.7
251,952
14.9
232,55414.3
235,228
14.4
NA
NA
Table 2

Incidence

Rate

Year
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995

IPC
1,358,660
1,384,731
1,405,835
1,406,992
1,440,356
1,529,844
1,604,449
1,678,375
1,689,341
1,629,936
1,635,251
1,642,599

SLL
2,916,808
3,096,481
2,984,654
3,589,236
3,765,669
3,847,665
3,293,563
3,370,971
3,558,448
3,803,638
3,876,994
3,457,189

Total
4,275,468
4,481,212
4,390,489
4,996,318
5,206,025
5,377,509
4,898,012
5,049,346
5,247,789
5,433,574
5,512,245
5,699,788

Table 2 gives figures about the incidenceof crime under the IPC and SLL, the rateof crime under IPC and SLL, total rate ofcrime and percentage of IPC crime vis-àvis, total crimes.
From Table 2, the following trends
clearly emerge:(1) There is an increase in the total
volume of crime over the years—both

IPC
184.7
184.4
183.5
180.1
180.8
188.5
194.0
197.5
194.7
184.4
181.7
179.3

SLL
396.5
412.4
389.6
459.3
472.7
474.0
398.3
396.8
410.1
430.4
430.8
377.4

Total
581.2
596.8
573.1
639.4
653.5
662.4
592.3
594.3
604.8
614.8
612.5
556.7

% of IPC Crimes
Cognizable
Crimes
31.8
30.9
32.0
28.2
27.7
28.4
32.8
33.2
32.2
30.0
29.7
32.2

under the IPC as well as under the
SLL. IPC crime in 1995 shows anincrease of 18.6 per cent compared to1985. The crime registered under
SLL also shows an increase of 11.6
per cent in the aforesaid period.
(2) However, the crime rate for IPC
offences shows a slightly declining
trend in 1994 and 1995 compared to189

RESOURCE MATERIAL SERIES No. 53
1990-91. The downward trend in thecrime rate under the SLL is more
pronounced, i.e., 8.5 per cent in 1995
compared to 1985.
3) The IPC crime constitutes about onethird of the total cognizable crimes
registered in India.
VII. DISPOSAL OF IPC CRIMECASES BY POLICE
Table 3 shows the disposal of IPC crime
cases by the police.
The percentage of cases finalised frominvestigation, on average, is about 80 per
cent per year. In other words, only 20 per
cent of the cases registered by the police ina particular year remain unfinalized withinthat calender year. Happily, the percentage
of cases in which charge-sheets are filed isgoing up steadily. This is a positive
development showing lesser false
registrations and higher police disposal.

VIII. DISPOSAL OF CRIMES BY
THE COURTS
The charge-sheets filed by the police are,in fact, inputs for the trial courts. Efficacyof the criminal justice system hinges on theprompt completion of trials and higher
conviction rates. The opposite of it would
be symptomatic of the systemic failure.
Table 4 shows disposal of cases by courts
and conviction percentage recorded over
the years.
Table 4 shows that the percentage oftrials completed is going down steadily.
While about 30 per cent trials werecompleted in 1961 and 1971, thepercentage came down to 23.9 per cent in
1981 and to 16.8 per cent in 1991. This
percentage has further come down to only
15.5 per cent in 1994.
The conviction rate is also steadily
falling over the years. It was 64.8 per centin 1961, but came down to only 47.8 perTable 3
Total No. of cases for Inv.
Year (including cases fromprevious year)
1961
696,155
1971
1,138,588
1981
1,692,060
1991
2,075,718
1993
2,090,508
1994
2,077,631

No. of Cases
Investigated586,279
894,354
1,335,994
1,649,487
1,637,712
1,612,245

No. of Cases% of Cases % of Cases
Charge-sheeted Investigated Chargesheeted
285,059
84.2
53.6
428,38278.5
52.8
740,88179.0
61.3
1,091,579
79.5
71.3
1,106,435
78.3
72.5
1,109,030
77.6
74.1

Table 4
Year
1961
1971
1981
1991
1993
1994

190

Total No. of Cases for Trial(including pending cases)
800,784
943,394
2,111,791
3,964,610
4,504,396
4,759,521

No. of Cases
Percentage
Trial
Convicted Trial Completed Conviction
242,592
157,31830.3
64.8
301,869
187,07232.0
62.0
505,412265,53123.9
52.5
667,340
319,15716.8
47.8
752,852
345,81216.7
45.9
736,797
316,245
15.5
42.9

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
cent in 1991. The conviction percentage
has further come down to 42.9 per cent in
1994. It may be clarified that the aforesaid
conviction rate is for both IPC and SLL
crimes. If we exclusively take into accountthe IPC crimes, the conviction rate is still
lower.
In 1994, only 16.02 per cent of murdercases were disposed of from trial and theconviction rate was 38 per cent.
As regards cases relating to attempts tomurder, 15.75 per cent of cases were
disposed of in 1994, the conviction rate
being 38.8 per cent. Of under-trial rapecases, 17.75 per cent were disposed of in1994, the conviction percentage being 30.42
per cent.
The above shows that, generally
speaking, only one-sixth of the total undertrial cases were disposed of in 1994 andabout one-third of heinous crimes resulted
in conviction. This, however, does not take
into account subsequent acquittals in theappellate courts.
IX. EFFICACY OF THE CRIMINALJUSTICE SYSTEM
The courts are constituted by the state
government under the Code and cases areprosecuted by public prosecutors appointed
by the state government or the central
government as the case may be. Even
though the National Crime Records Bureau
has been collecting data about the disposalof cases by the courts, the statistics do notseem to be authentic. It has been aptly
remarked by a wisecrack that the place ofa nation on the civilizational scale is to be
determined by the manner in which its
criminal laws are enforced. Since all theelements of the public justice system areinter-dependent, even the strictest
enforcement of law by the police agency will
not deliver the goods unless it is supportedby the judicial system by way of prompt
disposals. The role of the public prosecutor
and his performance is also to be judged

by his ability to assist the court in thisregard.
It is in this context that we are going tohave a look at the overall pendency of casesin the country. According to an estimate,
there are 21.8 million cases pending in thesubordinate courts. About 3.1 million cases
are pending in the High Courts. The
Supreme Court has a pendency of 22,000
cases only. There are about 11,000 courts
working in the country.
The number of pending trial cases underthe IPC was 52.8 lacs in 1995 which
increased to 56.2 lacs in 1996. Of these,
21.6 per cent have been pending for morethan 8 years. The number of cases pending
trial for more than 8 years increased from
10.7 lacs in 1995 to 12.11 lacs in 1996,
showing an increase of 13.3 per cent.
Table 5 shows the states’ accounting for
major pendency.
Table 5
State
1995
1996
Maharashitra
1,184,187 1,424,867
U.P.
1,375,588 1,008,558
Gujarat473,694 619,473
Madhya Pradesh
360,664 497,728
Rajasthan
287,337 368,999
Bihar
231,799 301,360
Pune
74,302 271,318
Orissa218,954 210,318
Andhra Pradesh
179,635 165,412
Haryana
117,582 132,346
Kanpur111,594 116,775
Kerala121,972 114,007
Karnataka
96,646 111,023
Delhi
117,949 110,086
Tamil Nadu
94,273 103,037
Mumbai
84,741
94,890Assam
72,30072,300The pendency of trial cases during thedecade 1985-1995 has piled up more thandouble with a growth rate of 10.6 per centper annum.

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RESOURCE MATERIAL SERIES No. 53
Apart from the IPC cases mentioned
above, 69.01 lac SLL cases were awaiting
disposal by criminal courts in the country
at the beginning of 1995. The disposal
percentage in 1995 was 52.2 per cent. As
against this, the percentage of disposal of
IPC cases was only 18.2 per cent. This islargely explained by the fact that the SLL
cases pertain to violations of minor acts likethe Gambling Act, the Prohibition Act, andthe Motor Vehicle Act and there are tried
summarily, resulting in quicker disposals.
As mentioned earlier, the Directorate ofProsecutions in some states is under thecontrol of the Home Department, while inothers is under the control of the Law
Department. The following section
examines which of the two systems is
working more efficiently.
A. Prosecution System under theControl of the Home Department
In the states of Tamil Nadu, Madhya
Pradesh, Uttar Pradesh, Andhra Pradesh,
Delhi, Maharashtra, Jammu and Kashmir,
Bihar, and Kerala, the prosecution wing isunder the Home Department. The
conviction percentage in these states for thelast seven years ranges from 67.8 per centin Tamil Nadu to 17.7 per cent in Kerala.
The average percentage of conviction for 7
years is given in Table 6.
Table 6
Average Percentage ofConvictions of 7 years
Tamil Nadu
67.8
Madhya Pradesh
64.5
Uttar Pradesh
54.0
Andhra Pradesh
51.6
Delhi
47.6
Maharashtra
39.4
Jammu & Kashmir
37.4
Bihar
36.7
Kerala
17.7
State

192

B. Prosecution System under the
Department of Law
In certain other states, the average
percentage of conviction for seven years,
again, ranges from 76.4 per cent in
Meghalaya to 21.9 per cent in Himachal
Pradesh. This is shown in Table 7.
Table 7
Average Percentage ofConviction of 7 years
Meghayala
76.4
Pondicherry
72.2
Sikkim67.2
Chandigarh
65.5
Haryana61.2
Gujarat
61.0
Manipur
47.6
Goa
44.4
Karnatka
31.9
Himachal Pradesh
21.9
State

Thus, no clear picture emerges as towhich of the two systems is working more
efficiently.
X. THE DUTIES AND FUNCTIONS
OF A PUBLIC PROSECUTOR
Public prosecution is an importantcomponent of the public justice system.
Prosecution of an offender is the duty ofthe executive which is carried out throughthe institution of the Public Prosecutor.
The public prosecutor is appointed by theState, and he conducts prosecution on
behalf of the State. While it is the
responsibility of the public prosecutor to
see that the trial results in conviction, he
need not be overwhelmingly concernedwith the outcome of the trial. He is an
officer of the court and is required topresent a truthful picture before the court.
Even though he appears on behalf of theState, it is equally his duty to see that theaccused does not suffer in an unfair andunethical manner. The public prosecutor,

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
though an executive officer, is an officer ofthe court and is duty bound to renderassistance to the court. The publicprosecutor represents the State and theState is committed to the administrationof justice as against advancing the interestof one party at the cost of the other. He
has to be truthful and impartial so thateven the accused persons receive justice.
The public prosecutor plays a dominantrole in the withdrawal of a case fromprosecution. He should withdraw fromprosecution in rare cases lest the confidenceof public in the efficacy of theadministration of justice be shaken.
The Supreme Court of India has defined
the role and functions of a public prosecutorin Shiv Nandan Paswan vs. State of Bihar& Others (AIR 1983 SC 1994) as under:a) The Prosecution of an offender is theduty of the executive which is carriedout through the institution of the
Public Prosecutor.
b) Withdrawal from prosecution is an
executive function of the Public
Prosecutor.
c) D i s c r e t i o n t o w i t h d r a w f r o mprosecution is that of the Public
Prosecutor and that of none else andhe cannot surrender this discretion
to anyone.
d) The Government may suggest to the
Public Prosecutor to withdraw a case,but it cannot compel him andultimately the discretion andjudgement of the Public Prosecutor
would prevail.
e) The Public Prosecutor may withdraw
from prosecution not only on the
ground of paucity of evidence but also
on other relevant grounds in order tofurther the broad ends of publicjustice, public order and peace.
f) The Public Prosecutor is an officer of
the Court and is responsible to it.

XI. ROLE OF A PUBLICPROSECUTOR IN
INVESTIGATIONSInvestigations in India are conducted as
per provisions of Chapter XII of the Code.
Cases are registered under section 154 of
the Code. A police officer is competent toinvestigate only cognizable offences. Noncognizable offences cannot be investigatedby the police without obtaining prior orders
from the courts. A police officer can
examine witnesses under section 161.
However, the statements are not to besigned by the witnesses. Confessions ofaccused persons and statements of
witnesses are recorded under section 164of the Code. A police officer has the power
to conduct searches in emergent situations
without a warrant from the court under
section 165. A police officer is competentto arrest an accused suspected to be
involved in a cognizable offence without anorder from the court in circumstances
specified in section 41 of the Code. He is
required to maintain a day to day accountof the investigation conducted by him
under section 172. After completion of
investigation, a police officer is required tosubmit a final report to the court under
section 173. If a prima facie case is madeout, this final report is filed in the shape ofa charge-sheet. The accused has,
thereafter, to face trial. If no cogent
evidence comes on record, a closure reportis filed in the Court.
The public prosecutor plays the followingrole at the investigation stage:(1) He appears in the court and obtains
arrest warrant against the accused;(2) He obtains search warrants from thecourt for searching specific premises
for collecting evidence;(3) He obtains police custody remand forcustodial interrogation of the accused(section 167);

193

RESOURCE MATERIAL SERIES No. 53(4) If an accused is not traceable, heinitiates proceedings in the court forgetting him declared a proclaimed
offender (section 82) and, thereafter,
for the consfiscation of his movableand immovable assets (section 83);and(5) He records his advice in the police fileregarding the viability/advisability ofprosecution.
After the completion of investigation, if
the investigating agency comes to theconclusion that there is a prima facie caseagainst the accused, the charge-sheet isfiled in the court through the publicprosecutor. It is to be noted that the opinionof the public prosecutor is taken by thepolice before deciding whether a prima
facie case is made out or not. The
suggestions of the public prosecutor are
also solicited to improve the quality ofinvestigation and his suggestions are
generally acted upon. However, theultimate decision of whether to send up acase for trial or not lies with the police
authorites. In case there is a difference of
opinion between the investigating officer
and the public prosecutor as to the viabilityof the prosecution, the decision of theDistrict Superintendent of Police is final.
XII. THE ROLE OF A PUBLICPROSECUTOR DURING TRIALSAs stated above, the public prosecutor isvested with the primary responsibility toprosecute cases in the court. After the
charge-sheet is filed in the court, theoriginal case papers are handed over tohim. The cognizance of the case is takenby the courts under section 190 of the Code.
The trial in India involves various stages.
The first and foremost is the taking of
cognizance of a case by the court. The
second step is to frame charges against theaccused, if there is a prima facie caseagainst him. The third step is to record
the prosecution evidence. The fourth step194

is to record the statement of the accused(section 313 of the Code). The fifth step isto record the defence evidence. The sixth
step is to hear the final arguments fromboth sides, and the last step is theprouncement of judgement by the Court.
The public prosecutor is the anchor man
in all these stages. He has no authority to
decide whether the case should be sent up
for trial. His role is only advisory.
However, once the case has been sent up
for trial, it is for him to prosecute it
successfully.
A. Withdrawal from Prosecution
The public prosecutor has the authority
to withdraw a case from trial under section
321 of the Code. Under the case law, heand he alone has the ultimate authority towithdraw a case from prosecution (AIR1983 SC 194). But the practice is that hereceives instructions from the government
and pursuant to those instructions, hewithdraws the case from prosecution. The
grounds of withdrawal could be many,
including:(1) False implication of accused persons
as a result of political and personal
vendatta;(2) Inexpediency of the prosecution for
the reasons of state and public policy;and(3) Adverse effects that the continuationof prosecution will bring on public
interest in the light of changed
situation.
B. Burden of Proof on Prosecution
It is for the public prosecutor to establish
the guilt against the accused in the court
beyond a reasonable shadow of doubt. The
evidence is in three forms, namely, oral
evidence (i.e., statements of witnesses);
documentary evidence; and circumstantial
evidence. Forensic evidence also plays animportant role in varied crimes. In the
Indian system, the statement of a witness
is recorded by the investigating officer. The

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
statement is not required to be signed by awitness under the law. The witness isrequired to appear in the court and prove
the facts mentioned by him to theinvestigating officer at the pre-trial stage
and to face cross-examination by the
defence lawyer. The public prosecutor
conducts the examination-in-chief of aw i t n e s s a n d , t h e r e a f t e r, h i s r e examination, if need be, in order to clarify
ambiguity, if any, after a witness’ crossexamination. Similarly, the documents
cited in evidence are required to be provedby the public prosecutor with the help ofwitnesses. The forensic evidence is proved
through the documents prepared by theexperts and also by the testimony of theexperts in the court. The experts are also
liable to be cross-examined by the defence
counsel. On the basis of the facts provedby the oral, documentary and forensic
evidence, the public prosecutor tries tosubstantiate the charges against theaccused and tries to drive home the guilt
against him. If there is a statutory law
regarding presumptions against theaccused, the public prosecutor draws thecourt’s attention towards that and meshes
it with other evidence on record. While thelaw requires establishing a prima facie casefor charge-sheet purposes, the law forconviction is that the guilt should be proved
beyond a reasonable shadow of doubt. The
standard of proof in Indian courts is quite
high and that largely explains the low
conviction rate, particularly in IPC
offences. The prosecutor has an immenserole. He has to prove the facts. He has toprove the circumstances, and then he has
to draw the inferences and convince thecourt that the arraigned accused alone isguilty of the offences that he has been
charged with. This is an onerous task andrequires sound legal knowledge, the ability
to handle witnesses and the capability tocarry the court along with him.

XIII. SPEEDY TRIAL
The concept of speedy trial is enshrinedin Article 21 of the Constitution of India.
Article 21 reads as under:
No person shall be deprived of his life
or personal liberty except according toprocedure established by law.
The Supreme Court in 1997 CrLJ, page
195 has interpreted this Article to meanthat right of speedy trial is also a
fundamental right. Undeniably, the trials
in India drag on for years together. There
are several agencies responsible for delays,
namely, the police, the lawyers, the accusedand the courts. All of them play acontributory role in the delays. While thepolice agency may be responsible for 25 percent of delays, non-police agencies are
responsible for the rest of it. The publicprosecutor, being an officer of the court, canplay an important role in ensuring speedy
trial. It is his duty to see that the adequate
number of witnesses are called at eachhearing and none of them goes backunexamined. Similarly, he is to ensure thatthe documents are put up to the court intime. He has also to ensure that police
officers, who generally prevaricate inappearing in the courts, do appear as per
the schedule fixed by the court. A goodworking relationship with the court may
help in achieving this end. Not muchcooperation can be expected from thedefence counsel as experience shows that
he is more interested in the delays than in
speedy trial because delay means morehearings which, in turn, means more feefor him. This behaviour may be unethicalon his part, but this is the ground reality.
In this scenario, the role of publicprosecutor assumes special significance.

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XIV. PLEA BARGAININGThe Indian law does not provide for plea
bargaining as it exists in the U.S.A.
However, the Law Commission of India hasrecently recommended to the governmentthat a separate Chapter (Chapter 21-A) be
incorporated in the Code to provide for plea
bargaining. The system of plea bargaining
has been recommended as it is believedthat 75 per cent of convictions in the U.S.A.
are based on plea bargaining. It is proposed
to introduce a plea bargaining system inless grievous offences, to begin with. If thisexperiment succeeds, it will be extended
to grievous offences thereafter.
XV. PUBLIC PROSECUTION
AND SENTENCING
In the criminal statutes, varied
sentences are provided for different
offences. The most serious offence is thecrime of murder for which life
imprisonment or death is provided. A death
sentence is, however, to be awarded in therarest of rare cases. There are certain
statutes which provide for minimum
imprisonment, but may exceed theminimum imprisonment so provided. Afterthe court has held the accused guilty, thedefence counsel and the public prosecutor
are called upon to argue on the quantumof punishment. The courts in India
generally believe in the individualisationof sentences. The age, educational
background, social status and liabilities of
the accused such as infant children,
dependent wife and other factors are
considered by the court before imposing asentence. The public prosecutor has to use
his discretion in arguing for adequate
punishment, keeping in view thecircumstances mentioned above. He should
exercise the discretion keeping in mind thegravity of the offence, and the facts andcircumstances of the case.
Besides, the court has the statutory
authority to release a convict on probation196

in certain offences under the Probation of
Offenders Act. The court can release aconvict on admonition in cases where thepunishment is not more than two years.
The public prosecutor should guide thesteps of the court in this regard.
The court also has the discretion torelease a convict on probation under section
360 of the Code, in the following
circumstances:(1) a convict of more than 21 years of age
punished with fine or imprisonmentof less than 7 years; and(2) a convict of less than 21 years of age
or any woman not punished with life
imprisonment or death.
The court will take into consideration hisage, character and antecedents and the factthat he is not a previous convict.
The court can also release the offenderon probation of good conduct in otheroffences excluding offences punishable withdeath or life imprisonment.
The prosecutor is required to help the
court in arriving at a fair and judicious
finding in this matter.
XVI. CO-ORDINATION BETWEEN
THE POLICE AND PUBLICPROSECUTORSBefore 1973, the Assistant Public
Prosecutors (some of them were police
officers) were under the direct control of
the District Superintendent of Police. The
public prosecutors appearing in the
Sessions Courts were drawn from the open
market on a tenure basis and they were
responsible to the District Magistrates.
After the amendment in the Code,Assistant Public Prosecutors have been
totally detached from the police
department. At present they report to theDistrict Magistrate at the district level andto the Director of Prosecutions at the statelevel. The status of the public prosecutors
appearing in the Sessions Courts remains
unchanged. There is no institutionalised

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
interaction or co-ordination between theinvestigating agency and the prosecuting
agency. The police files are sent to theAssistant Public Prosecutors for their legal
opinion at the pre-trial stage. As they are
not responsible to the district police
authorities, the legal advice is sometimes
perfunctory and without depth. Further,
the district police is totally in the dark as
to the fate of cases pending in the courts.
Even though there is a district level law
officer (called District Attorney in somestates), to supervise the work of theAssistant Public Prosecutors, he does nothave the status and stature that theDistrict Superintendent Police has.
Whatever the reasons, as shown supra in
Table 4, the conviction rate is falling over
the years. Be that as it may, there is no
immediate prospect of the Assistant Public
Prosecutors being placed under the control
of District Superintendent of Police. The
Law Commission of India has also
supported total separation between thepolice department and the prosecution
agency. Even so, it would be desirable to
make some institutional arrangement for
proper co-ordination between the two
agencies. The following suggestions arebeing made in this regard:(1) The District Superintendent of Police
should periodically review the workof the Assistant Public Prosecutors;(2) He should be authorised to call for
information from the prosecution
agency regarding the status of aparticular case pending in the court;(3) The prosecution agency should send
periodical returns to the District
Superintendent of Police regarding
disposal of cases in the courts;(4) The District Superintendent of Police
should send a note annually to theDistrict Magistrate regarding theperformance of each Assistant Public
Prosecutor working in his district,which should be placed in his
confidential annual report/dossier;and(5) On its part, the police department
should make available certain
facilities to the prosecutors such as
housing, transport, and telephones.
The state government may provide forthe above arrangement by issuingnecessary orders. Such an arrangement
would go a long way in bringing about coordination between the police and theprosecution agency.
XVII. ROLE OF PUBLICPROSECUTORS IN NATIONAL
CRIMINAL JUSTICE POLICY
The laws are enacted by the legislature,
enforced by the police, and interpreted by
the courts. Neither the police nor theprosecution agency has any say in theformulation of laws. The number ofcriminal laws is increasing by the day, but
the quality of drafting shows definite
deterioration and bristles with avoidable
vagueness in construction. It is felt that a
representative each of the police
department and the prosecution agency
should be associated with the formulation/
drafting of laws. Their field experiencewould go a long way in improving thequality of laws enacted. Further, unlike
the police, the prosecution agency does nothave a national level body to watch its
professional and service interests. This isdue to the fact that prosecution agencies
are organised at the state level and not at
the national level. Such an apex should beconstituted by the government.
XVIII. PROBLEMS OF
PROSECUTION AND
SUGGESTIONS FOR
IMPROVEMENT
It bears repetition that the conviction
percentage in India has been falling over
the years. It was 64.8 per cent in 1961,
and fell down to 42.9 per cent in 1994. The
disposal of cases by the courts is also fallingover the years. In 1994, it stood at 15.5
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RESOURCE MATERIAL SERIES No. 53
per cent of the total cases pending in the
Courts in that year. This clearly
demonstrates non-efficacy of the publicjustice system. The public prosecutors
cannot escape the blame for this dismal
state of affairs. It is proposed to highlightsome of the problems being faced by theprosecution agency and also to suggest
measures to improve the situation.
(1) The first and the foremost problem
is the poor quality of entrants in theprosecution agency. Undoubtedly, theentrant is a law graduate who
qualifies through a state-levelcompetitive exam, but the quality oflaw education is not uniform in the
country and is not up to the mark incertain law colleges. Further, theearnings in the open market aremuch higher than what the
government offers to the prosecutors.
Resultantly, able and competentadvocates shy away from joining theprosecution agency. The only way toremedy the situation is to make thejob attractive by improving the salarystructure and by providing otherperks such as government housing,transport, telephone facilities andallowances such as non-practisingallowance, rob allowance, and libraryallowance.
(2) According to an estimate, 21.8 million
cases are pending trial in thesubordinate courts. The exact
number of public prosecutors in the
country is not known. Experience,
however, shows that the publicprosecutors are overburdened withcases and their number is notadequate enough to efficiently handle
the cases entrusted to them. It isdifficult to fix a norm as to thenumber of cases to be entrusted to a
public prosecutor as it would dependon the nature of the case. Further,
the performance of a publicprosecutor is largely dependent on
the performance of the presiding
198

officer and other collateral factors.
While there is a case for increasing
the number of criminal courts, there
is equally a case for increasing thenumber of public prosecutors. As anorm, at least two public prosecutorsof the appropriate level should be
attached with each court.
(3) The Assistant Public Prosecutors arerecruited from the open market, andthey are entrusted with the cases
without any institutional training.
They learn by experience, but thattakes time and, in the meanwhile, thecases suffer. It is suggested that anational level training institution
should be set up for the publicprosecutors to impart them proper
training. The duration of the training
could be one and a half years. Six
months could be earmarked fortraining in law; four months for
attachment with a police station; fourmonths for attachment with acompetent magistrate; and theremaining four months for
attachment with a senior andexperienced public prosecutor. The
proposed institutional training could
be supplemented with refersher
courses from time to time.
(4) The pay scales of the Assistant Public
Prosecutors are rather low. AssistantPublic Prosecutors Grade-II are
bracketed with a Sub Inspector of
Police and Assistant Public
Prosecutors Grade-I with an
Inspector of Police. As they are law
graduates and have lucrative
avenues open to them in the market,
it is necessary that their pay scales
be improved and also they be given
sumptuous allowances so as to makethe job attractive. Similarly, thehonorarium paid to the publicprosecutors appearing in the Sessions
Courts is grossly inadequate and thisneeds to be enhanced drastically.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS(5) Another problem facing the publicprosecutors is the lack of promotional
avenues. As stated in the preceding
paras, an Assistant Public Prosecutor
Grade-II is promoted to AssistantPublic Prosecutor Grade-I and
thereafter as Assistant Director or
Deputy Director, as the case may be.
He can appear only in the Magisterial
Courts and not in the Sessions
Courts, where more heinous offences
are tried. It would be expedient tointegrate the two cadres and allow an
Assistant Public Prosecutor to rise in
the heirarchy; enabling him to appear
not only in the Sessions Court, buteven in the High Court, depending on
his ability and calibre.
(6) The investigations are generally
conducted by low level police officers
who are not proficient in laws,
procedures and practical police
working. The supervisory officers
are, sometimes, deficient in closely
monitoring the investigations. Suchcases when sent up for trial, often
result in acquittals and the blamecomes on the public prosecutors.
While, it is necessary to improve thequality of public prosecutions, it isclearly important to improve thequality of investigation. Special
emphasis should be laid on using
modern scientific methods ofinvestigation. A closer rapport
between the investigating agency andthe prosecution agency should also
improve the outcome of trials.
(7) D e l a y i n t r i a l s i s o n e o f t h efundamental reasons for acquittals in
criminal cases. Speedy trial is thefundamental right of the accused inIndian law. It is the paramount dutyof the public prosecutor to ensure
speedy trial for which he has to takealong with him the court and also thedefence lawyer. The police officers,
sometimes, are responsible for delays

in trials because of their lack ofinterest in trials as evidenced in nonproduction of witnesses in time and,occasional prevarication in appearing
in the courts themselves to renderevidence. A multi-disciplinary
approach needs to be evolved to
remedy this situation and no shortcut solutions are possible.
(8) The prosecutors generally do nothave good library facilities. Due totheir rather inadequate pay scales,
they are not in a position to spend on
books. The libraries of the Bars are
overcrowded and the books are notmade available to the prosecutors. It
would be advisable to set up exclusive
libraries for the prosecutors in cities
and bigger towns at government cost.
(9) There is virtually no accountabilityon the part of the prosecution agency.
The work of Assistant Public
Prosecutors is supervised by theDistrict Magistrate, who being thechief executive of the district, issaddled with multifarious
responsibilities and has virtually notime to supervise their work. The
public prosecutors appearing in the
Sessions Courts, again, areresponsible to the District
Magistrate. Apart from the time
constraint, the District Magistrate
generally does not possess the legal
acumen and knowledge to objectively
assess the performance of each publicprosecutor and cannot give thrustand impetus to the prosecution
agency. The departmental superiors
should play a dominant role in thisregard. Norms for disposal of work
should be fixed and non-performers
should be penalised.

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XIX. CONCLUSION
In the final analysis, a public prosecutor
is an officer of the court and is required torender assistance to the court to arrive ata just and equitable decision. He is also
required to be fair to the opposite party.
His guiding principle should be not so muchthe letter of law, but the spirit of law basedon prudence, common sense and equity. A
society which is governed by the letter oflaw does not fully exploit its humanpotentialities. I conclude by quoting from
Russian Nobel laureate Solzhenitsyn,
A society which is based upon theletter of law, and never reaches any
higher is taking very scarce advantage
of high level of human possibilities.
The letter of the law is too cold to haveany beneficial influences on society.
Whenever the issue of life is woven inlegalist relations, there is anatmosphere of moral mediocrity,
paralysing man’s noblest impulses.

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107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

THE ROLE AND FUNCTION OF THE INDONESIANPROSECUTION SERVICE IN CRIMINAL JUSTICE
Ersyiwo Zaimaru*
I. INTRODUCTION
Since prosecution has been realized asa fundamental component of the criminal
justice system in addition to investigation,
judgment and the execution of the judge’s
disposition, the Prosecution Service of the
Republic of Indonesia also has a pivotal roleand function in the Indonesian law
enforcement system. In other words, theIndonesian Prosecution Service is
indispensable in the Indonesian criminal
justice system.
This paper tries to describe concisely therole and function of Indonesian prosecutors
in the criminal justice system.
II. ORGANIZATIONAL STRUCTURE
AND ROLE OF THE INDONESIANPROSECUTION SERVICE
A. Position within the National
Organizational Structure and Its
Independence and Neutrality
1. Position
The Prosecution Service of the Republicof Indonesia is a government institution,
which is separated from the Ministry ofJustice and other criminal agencies. Thisinstitution has the main duty to executethe state power in the field of prosecution
and other duties based upon theregulations and laws and to have a sharein exercising a part of the general duty of
government and the development in thefield of law.
* Head of Sub Division for Monitoring, Division of
Cooperation for Foreign Legal Affairs, Bureau of
Law and Public Relations, Attorney General’s
Office, Indonesia.

The Prosecution Service (Kejaksaan) is
composed of one Attorney General’s Office,27 the High Prosecution Offices and 296
District Prosecution Offices. The Attorney
General Office is located in the capital of
the Republic of Indonesia, Jakarta, and its
territorial jurisdiction covers the territoryof the Republic of Indonesia. The High
Prosecution Office covers the territory of
the province and the District Prosecution
Office covers the territory of the district or
the respective municipality and or an
administrative city. It is clear that the
A t t o r n e y G e n e r a l ’s O f f i c e i s t h eheadquarters of the Indonesian
prosecution service.
Furthermore, pursuant to Article 7,paragraph (1) of Act No. 5/1991, a branchof the District Prosecution Office can beformed by the decree of Attorney General
after the State Minister of Administrative
Reform has given his approval thereto.
This means that a branch of the District
Prosecution Office is the lowest level in theorganizational structure of the Indonesian
Prosecution Service.
The Indonesian Prosecution Service
itself is led by the Attorney General who isappointed and dismissed by andresponsible to the President of the Republicof Indonesia. The Attorney General is thesupreme leader in and responsible for theProsecution Service who controls over the
execution of the duties and authority of theservice. In conducting this daily job, he isassisted by one Vice Attorney General andsix Deputy Attorney Generals.
The Attorney General and the Vice
Attorney General constitute a unity ofleadership components. All Deputy
Attorney Generals are the components

201

RESOURCE MATERIAL SERIES No. 53
which support the leadership. As statedin Article 4 of the Presidential Decree No.
55/1991, the structure of the Indonesian
Prosecution Service consists of:(1) Attorney General;(2) Vice Attorney General(3) Deputy Attorney General for
Advancement;(4) Deputy Attorney General forIntelligence Affairs;(5) Deputy Attorney General for
General Crimes;(6) Deputy Attorney General for Special
Crimes;(7) Deputy Attorney General for Civil
and Administrative Affairs;(8) Deputy Attorney General for
Supervision;(9) Centres;(10) Prosecution Offices at regional level
which consists of:a. High Prosecution Offices, andb. District Prosecution Offices.
In addition, the Indonesian Attorney
General has the level as same as a State
Minister. Therefore, the Attorney General
as well as the commander-in-chief of theIndonesian Armed Forces and the Ministerof Justice is a member of the Cabinet whichis led directly by the President.
In the Indonesian organizational
structure of national government, thePresident and Vice President are electedby all members of the People’s Consultative
Assembly (MPR), which is the highest
constitutional body. Under the 1945
Constitution, the MPR convenes at least
once every five years to elect the President
and Vice President and to adopt the broad
outlines of state policy, which provide aframework for government policy
directions. This body consists of all 500
members of the House of Representatives(Parliament) and 500 additional members
appointed by the government. The DPR(Parliament) itself meets regularly anddebates legislation submitted to it by thegovernment.
202

2. Independence and Neutrality
In order for one to be appointed as a
Public Prosecutor, according to Article 9 of
Act No. 5/1991 on Prosecution Service of
the Republic of Indonesia, inter alia, onemust be a civil servant, hold a university
degree in law, and pass the examination of
the education and training for the skill
profession of Public Prosecutor. Due to its
status of being a civil servant, therefore
undoubtedly, every Indonesian publicprosecutor is fully controlled by his/hersuperiors. It can be seen in the actual
practice of prosecution of offenders that apublic prosecutor in charge, before
submitting his/her requisite charges,
should first ask the size of charges to thehead of the District Prosecution Office fora case at the district level or the head of
the High Prosecution Office for a provincial
level case and the Attorney General for anational level case. In other words, every
Indonesian public prosecutor is fully
controled by his/her superiors, which isreferred to in Article 8, paragraph (2) inthe following words:
In instituting prosecution the Public
Prosecutor shall act for and on behalfof the state and be responsible tohierarchical channel.
As mentioned above, an Indonesianpublic prosecutor is a government official.
In handling criminal cases, the executionof prosecution must be based upon the law
and must always observe the sense ofjustice in existence with the society by
paying attention to the government policy.
The Indonesian public prosecutor shall act
as the government and the state officials
in the execution of prosecution. This meansthat there is no neutrality for publicprosecutor because the government
interest must be kept in the prosecution
against the offenders. In addition, theIndonesian public prosecutor shall act asa State Attorney when there are civil andadministrative actions against the stateand government of the Republic of

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Indonesia. It can be said that every
Indonesian public prosecutor must standby their government and their state.
B. Appointment and Training of
Public Prosecutors and the
Guarantee of Their Status
1. Appointment
As mentioned before that is stipulated
in Article 9 of the Act No. 5/1991, in orderfor one to be appointed a public prosecutor,
he shall have to fulfill the following
requirements:(1) be an Indonesian Citizen;(2) be pious to the One Almighty God;(3) b e l o y a l t o P a n c a s i l a ( s t a t ephilosophy) and the 1945
Constitution;(4) not be an ex-member of the banned
I n d o n e s i a C o m m u n i s t P a r t y,
including the mass organizations
thereof or not be a person directly
involved in the “CounterRevolutionary Movement of
September 30th/Indonesia
Communist Party” or other banned
organizations;(5) be a civil servant;(6) hold a university degree in law;(7) be at least 25 years of age;(8) be authoritative, honest, just and not
behave disgracefully; and(9) pass the examination of the educationand training for the skill professionof Public Prosecutor.
Those requirements above are verified
in a selection process that is conducted by
the Bureau of Personnel Affairs of the
Attorney General’s Office.
Prosecution service has recruited legal
personnel within the prosecution service.
They must be law school graduates andpass the prosecutor pre-service training
organized by the training center in Jakarta.
Every year, the training center produces
about 200 new public prosecutors.

Recently, there are about 5,000 publicprosecutors, who serve prosecution. That
number also includes civil andadministrative law enforcement.
2. Training and the Guarantee of
Public Prosecutors Status
The Centre for Education and Training
has the duty to execute the education andtraining in the environment of theIndonesian Prosecution Service by virtueof law and regulation and the policy
determined by the Attorney General. This
centre is a component in support of the duty
and function of the prosecution service,while is under and directly responsible to
the Attorney General.
Education and training programs for
personnel of the prosecution service thatis organized by the centre consists of PreService and In-Service programs that canbe seen in Table 1.
In addition to the information of Table
1, in-service programs consist of training
programs on general administrative,
structural, functional and technicaleducation, and training for publicprosecution candidates is a kind offunctional training program. This technicaleducation and training program may
consist of training of Intellectual Property
Rights, law enforcement in criminal cases,
and law enforcement in civil andadministrative cases, intelligence activities,
etc. This kind of training can be an
appropriate solution to overcome theproblems of insufficient qualified publicprosecutors dealing with new crimes which
seem more sophisticated and organized.
The goal of functional education andtraining programs is strengthening theskills and professional capacities of publicprosecutors as required by government
regulation. Furthermore, the technicalprograms will give a better opportunity for
any qualified public prosecutor andadministrative personnel to acquire the203

RESOURCE MATERIAL SERIES No. 53
Table 1KINDS OF EDUCATION AND TRAINING PROGRAMS
Kind of Education and Training
ProgramPre-service Training
General Administrative
Structurala. Administrative Staff & Leader First
Level
b. Middle Level
c. High Level
Functional Training (Non Strata)
Technical Training

Participant
Candidate for Civil Servant in
Prosecution Service– Official Echelons V & IV
– Functional Official
Official Echelon III
Official Echelon II
Official Echelon I
Functional Official
Structural & Functional Officials

Source: Rasmin Saleh, “The Education and Training of Indonesia Public Prosecution
Service”, unpublished, p. 18.
knowledge and technical skills in order toimprove the objectiveness and efficiency incarrying out their duties, especially for new
problems faced by Prosecution Service of
the Republic of Indonesia.
Participation for every program is basedon assignment. A selection team considers
what is expected of those participants after
they finish their training, so that they can
improve their ability to achieve a better
career position and a brighter future.
Therefore, the education and training
programs are the strategic way to get thecapable and skillful public prosecutors in
handling cases. It can be noted theguarantee of having a bright future is
attending the series arranged programs.
C. Professional Ethics of Indonesian
Prosecutors
The ideal figure of an Indonesian publicprosecutor is a person who holds or reflects
the values of the Prosecution Service
maxims called Satya, Adhy and Wicaksana(Integrity, Maturity and Wisdom). Thismaxim which is called Tri Krama Adhyaksa
or Indonesian Prosecution Service doctrine,
was stipulated by the Attorney General’s

204

Decree No. KEP-030/JA/3/1988 on March
23, 1988.
Pursuant to Article 8, paragraph (4)of Act No. 5/1991, in executing its duty andauthority, the prosecution service shallalways act by virtue of the law and with
due observance of the norms of religion,
good manners and morality, and shall also
be obligated to delve into the living valuesof humanity, law and justice in the society.
Moreover, public prosecutors shall institutea prosecution on the belief that theirprosecution is based upon sufficient legalmeans of proof. According to Article 184,
paragraph (1) of Act No. 8/1981, legalmeans of proof shall be the testimony of
witnesses, testimony of the experts,
documents, the indication, and thetestimony of the accused.
As stated in Article 11, paragraph (1) of
Act No. 5/1991, unless determinedotherwise by virtue of the law, theIndonesian public prosecutor may notconcurrently become a businessman or alegal adviser or do another job which can
influence the dignity of his/her office. The
violation of this statement, according to
Article 13, paragraph (1), section c, shall

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
result in the public prosecutor being
dishonourably dismissed from his/her
office. The other regulations related to theprofessional ethics of Indonesian
Prosecutors can be found in Code of Civil
Servant Ethics and several acts concerning
the duty, authority and function of publicprosecutors in the Indonesian justicesystem.
III. INVESTIGATION
A. Investigative Authority andMethodology
Arcitle 6, paragraph (1) of Act No. 8/1981
on Criminal Procedure (KUHAP) statesthat an investigator shall be:(1) an official of the state police of the
Republic of Indonesia; and(2) a certain official of the civil service
who is granted special authority bylaw.
Refering to this statement, in practice,
the police official is an investigator for
general crimes such as murder, theft androbbery.
The public prosecutor is also authorized
to be the investigator for special crimes
such as the corruption cases (Act No. 3/
1971 on Eradication of Corruption
Offences). It is sanctioned by Article 284,
paragraph (2) of Act on Criminal
Procedure, which states:... all cases shall be subject to theprovision of this Act, with temporary
exception for special provisions on
criminal procedure as refered to incertain acts, until they are amended
and or are declared to no longer be ineffect.
Another regulation which sanctions thatstatement above, is Article 17 ofGovernment Regulation No. 27/1983,
which mentions that public prosecutors
and certain officials have authority as
investigators of special crimes. It means
there are several special investigators

besides public prosecutors in theIndonesian investigation system, inter alia,
naval officers for Fishery and Exclusive
Economic Zone offences; and civil servantsof Customs and Excise, Tax Division,
Forestry Officer, etc.
An investigator as regulated in Article
7, paragraph (1) of Act No. 8/1981 shall becompetent, inter alia, to carry out arrest,
detention, search and seizure of documents;
to summon a person to be heard or
examined as a suspect or a witness; to takeother responsible acts in accordance withlaw. In this regard, the investigator shallprepare minutes of the execution of acts
and then shall deliver the dossier of caseto the public prosecutor. The delivery ofthe dossier shall be accomplished as follows[Article 8, paragraph (3) of Act No. 8/1981]:(1) At the first stage, the investigator
shall deliver only the dossier of case.
(2) Where the investigation is deemed tohave been completed, the investigator
shall cede responsibility for thesuspect and the physical evidence tothe public prosecutor.
However, there is not a strict sanction
against the investigator who delivers thedossier of a case late and never completes
the returned case. In practice, a publicprosecutor in charge will ask thatinvestigator ’s superior to order thecompletion of the case as soon as possible.
B. Instruction and Supervision of
the Police, and the Cooperation
between the Public Prosecutor
and the Police
As we know, the role of the publicprosecutor can be seen clearly from theacceptance of the case dossier from thepolice officer. Then, the public prosecutor
will compose the results of the criminal
investigation to be the criminal prosecution
against the defendant. In the Indonesiancriminal justice system, a public prosecutor
within seven days shall be obligated to205

RESOURCE MATERIAL SERIES No. 53
inform the investigator in charge whether
the results are complete or incomplete.
Where the results are evidently incomplete,
the public prosecutor shall send the dossierback to the investigator accompanied by an
instruction on what must be done to makeit complete. Then, within 14 days after
receiving the dossier, the investigator shallbe obligated to return the dossier to the
public prosecutor.
As mentioned before, there is no a strict
sanction against the investigators whoneglect their obligation to complete the casewithin the mentioned period. In that case,a good informal or personal relationshipbetween the public prosecutor and theinvestigator (the State Police Officer) canbe seen on the results of investigation.
Conversely, the public prosecutor in charge
will ask his/her superior or the head of theDistrict Prosecution Office to contact theinvestigator ’s superior to fulfill his
obligation soon. Alternately, the publicprosecutor will never give or approve theextension of further detention in theinvestigation period. It can be deemed as
an effective way for public prosecutors tosupervise what the investigators have donetill the end of the detention period.
Although the public prosecutor is able
to return the incomplete dossier to theinvestigator accompanied by the
instruction, however, it can not be said thatthe public prosecutor has supervised thestate police officer in conducting theinvestigation vertically. Accordingly, boththe public prosecutor and the police officer
together have prepared a successful
investigation. It must be noted a successful
investigation shall determine the nextstage of law enforcement results.
C. Role of Public Prosecutors inArresting and Detaining theSuspect
Pursuant to Article 109, paragraph (1)of the Act on Criminal Procedure, where
an investigator has begun the investigation

206of an event, which constitutes an offence,
the investigator shall inform the publicprosecutor of this fact. That information
includes the arrest and detention of thesuspect, which have been conducted by theinvestigator.
The investigator on a person who isstrongly presumed to have committed an
offense based on sufficient preliminary
evidence shall issue an arrest warrant.
That arrest can be made for at most one
day, and a person suspected of having
committed a misdemeanor shall not be
arrested except when without valid reasons
he has failed two consecutive times tocomply with valid summons (Articles 17 to
19 of Act No. 8/1981).
Furthermore, for the purposes ofinvestigation as well as prosecution andtrial proceedings, the investigator insteadof the public prosecutor and the judge attrial, has the authority to a detain a suspect
who is strongly presumed to havecommitted an offence based on sufficientevidence. It is applied on cases where there
are circumstances which give rise toconcern that the suspect will escape,damage or destroy physical evidence and/or repeat the offence. According to Article
24, paragraph (1) of the Act on Criminal
Procedure, a warrant of detention issued
by an investigator shall only be valid forat most 20 days. It may be extended by acompetent public prosecutor for at most 40
days, if an investigation has not been
completed yet. After the said 60-day period,
the investigator must release that suspectfrom detention for the sake of law.
The role of the public prosecutor inarresting and detaining a suspect which
are conducted by the police or aninvestigator, is merely to supervise thevalidity of the investigator’s activities
concerning investigation. In fact, theinvestigators shall be responsible
themselves for whatever they have done.
In addition, a suspect shall have the rightto demand compensation for the harm of

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
having been arrested, detained or otheracts, without reason founded on law or due
to a mistake with regard to his identity or
to the applicable law (see Article 95,
paragraph (1) of Act No. 8/1981).
IV. INDICTMENT
A. Authorized Agency to Indict andthe Methodology
As mentioned before, the Prosecution
Service of the Republic of Indonesia is asole agency which shall execute the state
powers in the field of prosecution. Itmeans, there is no private prosecution in
the Indonesian criminal justice system. In
addition, the Prosecution Service shallhave the authority to carry out theprosecution of anyone who is accused ofcommitting an offence within a publicprosecutor’s jurisdiction by bringing thecase before a competent court to adjudicate
accompanied by a bill of indictment.
After the public prosecutor has received
or accepted the returned and complete
dossier case from the investigator, he shallpromptly determine whether or not thedossier meets the requirements to bebrought before a competent court. Where
he has the opinion that a prosecution may
be conducted from the results ofinvestigation, he shall prepare as soon as
possible a bill of indictment. Pursuant to
Article 141 of the Act on Criminal
Procedure, a public prosecutor may effectthe joinder of cases and cover them in one
bill of indictment, if at the same time oralmost simultaneously he receives several
dossiers of cases on:(1) several offences committed by thesame person and the interest of theexamination does not pose an
obstacle to joinder;(2) s e v e r a l j o i n d e r s w h i c h a r einterrelated one with the other; or(3) several offences which are notinterrelated but which do have someconnection one another, such that thejoinder is necessary for purposes of
examination.
On other hand, where a publicprosecutor receives a case dossiercontaining several offences committed byseveral suspects, he may conduct a
prosecution against each of the defendant
separately. Therefore, a public prosecutor
has the authority to decide freely whethera case will be separated or not.
B. Degree of Certainty Regarding
Guilt Required to Indict a
Suspect
In Indonesian criminal procedure, there
are three kinds of examination procedures,i.e.:(1) Ordinary,(2) Summary, and(3) Express, which consists of proceduresfor examination of minor offences andprocedures for traffic violation cases.
The ordinary examination procedures
are regulated in Articles 152 to 202 of Act
No. 8/1981 on criminal procedure, Articles
203 to 204 for summary procedure, Articles
205 to 210 for minor offences, and Articles
211 to 216 for the examination proceduresof traffic violation cases.
Ordinary procedure is the main legal
procedure that is implemented in every
competent court. In this procedure, after
receiving the case dossier, which must be
accompanied by a Bill of Indictment fromthe public prosecutor, the presiding judge
at the court shall determine the trial date.
Moreover, the presiding judge shall alsoorder the public prosecutor to summon theaccused and witnesses to attend the trial.
There is a specialty among thoseexamination procedures above where apublic prosecutor shall never be involved
directly in the examination, i.e., the express
procedures. In this procedure, as

207

RESOURCE MATERIAL SERIES No. 53
mentioned in Article 205, paragraph (2) of
Act No. 8/1981, the investigator on behalfof public prosecutor shall within three days
after completion of the date minutes of theexamination, present the accused together
with the physical evidence, witnesses,
experts and/or interpreters before thecourt. It is a little bit different to thesummary procedure in that the authorized
official whose obligation is to present theaccused together with the required
witnesses, experts, experts, interpretersand physical evidence, is a publicprosecutor. It is similar to the ordinary
procedure in that the public prosecutor ismore responsible for presenting theaccused required witnesses, experts andinterpreters before a competent court.
The criteria to decide whether a criminalcase shall be examined in summary
procedure, is that a case does not fall under
the provisions of Minor Offences and forwhich the evidence and application of law,and according to the public prosecutor in
charge, is simple and straightforward.
Cases with a penalty of at most threemonths’ imprisonment or confinement anda fine of not more than 7500 rupiahs (about
300 yen) shall be examined in express
procedures.
In preparing a bill of indictment, whichshall be dated and signed by the publicprosecutor in charge, it shall contain(Article 143 of Act No. 8/1981):(1) the full name, place of birth, age ordate of birth, gender, nationality,
address, religion and occupation of
the suspect; and(2) an accurate, clear and complete
explanation of the offence of whichaccusation is made, stating the timeand place where the offence wascommitted.
A bill of indictment which does notsatisfy the provision above shall be void forthe sake of law.

208

C. Exercise of Discretion in
Prosecution
A public prosecutor may not prosecutean accused when he has found threetechnical circumstances and one factor ofpolitical reason (Cf. Andi Hamzah and RM.
Surachman, “The Role a Public
Prosecutor”, paper for Indonesian-Japan
joint seminar held in Jakarta on January
2-24, 1992, pp. 30-33), i.e.:(1) the fact has insufficient evidence;(2) the fact does not constitute an offence;(3) it is for the interest of law; and(4) political reason.
Whenever the public prosecutor decides
to cease or to suspend the prosecution
because of insufficient evidence or it has
become clear that said event did notconstitute an offence or the case has beenclosed in the interest of law, the publicprosecutor shall set this forth in a written
decision. According to Article 140,
paragraph (2) subparagraph b of Act No.
8/1981, the content of said written decision
shall be made known to the suspect and if
he is detained, that suspect should be
released immediately. Moreover, the copiesof the written decision must be sent to thesuspect or his family or legal counsel,
official of the state house of detention, theinvestigator and the judge. If thereafter
new circumstances should provide
sufficient evidence, the public prosecutor
may conduct a prosecution against thesuspect.
In addition, pursuant to Article 183 of
the Criminal Procedure Code, a judge shallnot impose a penalty upon a person except
when there are at least two legal means of
proof enabling him to come to theconviction that an offence has truly
occurred and that the accused is guilty ofcommitting it. Therefore, if there are twoamong five legal means of proofs, normally,
the public prosecutor shall prosecute theaccused before a competent court.
Furthermore, the interest of law as107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
mentioned above, including lapse of time,
double jeopardy or nebis in idem, and thedeath of the accused, shall be consideredwhen determining whether or not toprosecute the accused.
Prior to 1961, every public prosecutor inIndonesia was allowed by the law to drop
the case even though there was sufficientevidence to warrant a conviction. Then,
this power was abolished in 1961.
However, since that time only the Attorney
General has been allowed to drop a casefor political reasons or for the interest oflaw. Hence, a public prosecutor who wishes
to utilize this power has to request the
Attorney General to determine it, which is,unfortunately, rarely exercised.
Although the authority to exercise thediscretionary power is not stipulated
explicitly in articles of the Act Number 8/1981 (KUHAP), the elucidation of Article
77 KUHAP infers this power which is called
the opportunity principle. Fortunately, thisprinciple has been endorsed by Article 32,
paragraph (4) of Act No. 5/1991 on
Prosecution Service of the Republic ofIndonesia.
D. Plea Bargaining
In the Indonesian criminal justicesystem, plea bargaining has never been
known clearly. To decide whether anaccused is guilty or not, is the authority of
the judges at trial. However the judges attrial shall impose a proper punishment
based on sufficient legal means of proof,
namely at least two legal means of proof,
which convincingly establish that theaccused has truly committed an offence.
A public prosecutor in instituting theprosecution, of course, will first beconcerned about the sufficiency of theevidence to establish a prima facie case orthat the evidence that would warrant
conviction. There are severals factors
usually taken into consideration before
deciding to prosecute such as the gravity
and circumstances of the offence, and thepersonal factors related to the alleged
offender, inter alia, the character, the age,
any mental illness or stress affecting theoffender and the relationship of the victim
to the offender. After a public prosecutor
has gathered the prima facie evidence, hedecides whether to prosecute or not.
V. TRIAL PROCEEDINGS
A. Proof of Criminal Facts
As stated previously, there are five legalmeans of proof in Indonesian criminal
procedure, i.e., the testimony of witnesses,
the testimony of experts, documents,
indication, and the testimony of theaccused [Article 184, paragraph (1) of Act
No. 8/1981]. The testimony of a witness iswhat the witness has stated at trial, which
is similar to the testimony of the expert andthe accused, i.e., what the expert and theaccused have stated at trial. A document
as a legal means of proof should be madeunder an oath of office or strengthened byan oath. An indication is an act, event or
circumstance which because of its
consistency whether between one and theother or with the offence itself, signifies
that the offence has occurred and who theperpetuator is (see Articles 184 to 189 of
Act No. 8/1981).
In addition, the indication as a legalmeans of proof shall only be obtained fromthe testimony of the witnesses, thedocument and the testimony of the accused.
The evidentiary strength of the indication
is evaluated by the judges at trial wisely
and prudently after those judges haveaccurately and carefully conducted an
examination on the basis of theirconscience. In practice, every publicprosecutor always tries to have theindication in proving the accused guilty. In
other words, every public prosecutor
always tries to obtain three or more legalmeans of proof in proving the guilt of theaccused.

209

RESOURCE MATERIAL SERIES No. 53
However, if the court is of the opinion
that from the results of examination attrial, the guilty of the accused has not beenlegally and convincingly proven, theaccused shall be declared acquitted.
Moreover, if the court is of the opinion thatthe act of the accused has been proven but
such act does not constitute an offence, allcharges against the accused shall bedismissed. In these cases, if the publicprosecutor is not satisfied with the opinionof the court (i.e., dismissal or acquittal), hemay appeal to the competent High Court.
Furthermore, he may request for a
cassation to the Supreme Court, if he is notsatisfied with the High Court decisionaffirming the District Court decision.
According the explanation above, thecompetent District Court may make threekinds of decision upon the accused, i.e.:(1) Punishment;(2) Acquittal;(3) Dismissal of all charges against theaccused.
B. Cooperation for Speedy Trial
In pursuit of Article 4, paragraph (2) ofthe Act on the Basic of Judicial Power, thejudicial administration shall be conductedsimply, speedily and economically. These
principles must fulfill the expectation of all
seekers of justice. As we realized, they do
not need a complicated examination
procedure that may take a long time and,sometimes, it should be continued by an
heir.
Cooperation among the investigator,
public prosecutor and the judges at trial
and also each superior, in practice, has spedup the examination process. Moreover, therole of the accused in showing the required
evidence to the competent official of the law
enforcement agencies, is also deemed
another way for a speedy trial.

C. Securing Appropriate Sentence
In practice, there are quite many
sentences passed by judges which havebeen considered not in accordance with thesense of justice in Indonesian society. The
ordinary people consider those sentences
so lenient that they might lead to anincrease in crime, even though suchargument has not been proven. Moreover,people do not want to understand why it
has occurred in the Indonesian law
enforcement system.
Securing an appropriate sentence is not
only conducted by the judges at trial but
also by the public prosecutor, investigatorand other officials of criminal agencies. An
appropriate sentence should be made on
an appropriate request of charges against
the defendant, and it is based on effective
investigationary results. In other words,
an inappropriate sentence is merely causedby human errors which are made by thoselaw enforcement officials. Therefore,
providing the proper training for those
officials is necessary to reduce humanerrors in sentencing.
D. Supervision over the Fair
Application of Law
Similar to the above-described, people
often ask judges why they do not performthe same justice in sentencing offenders
committing the same crime under similar
circumstances. According to Justice
Soerjono (see paper in Indonesia-Japan
Joint Seminar, Jakarta, January 20-24,
1992, pp. 6-8), there are several factors
which might influence the decision ofjudges in passing sentences, i.e.:(1) Nature of Crime;(2) Defendant’s Character;(3) Community response toward crime;and(4) Chance.
Considering that judges, publicprosecutors, investigators and other law
enforcement officials are government

210

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
officials who should obey governmental
disciplinary regulations, the role of theirrespective superiors in supervising over thefair application of law is really important.
Public supervision that is carried out by
the Indonesian people through the mass
media is deemed another instrument tocontrol the fair application of the law.
Moreover, the request for appeal andcassation is a pivotal instrument tosupervise fairness, which is the right of the
public prosecutor and/or the defendant.
In conducting trial proceedings, thepublic prosecutor in charge shall beobligated to present the defendant,
witnesses, experts and all evidence
concerning the defendant who is accusedof having committed a crime. If in fact theaccused or the witnesses were legally
summoned but failed to be present at trial,
the examination of the case can not be
continued and the head judge shall ordersaid person to be summoned once again for
the next trial session. Usually, delay in thetrial proceedings may be caused by:(1) The required witnesses not having
received the summons.
(2) A witness’ intent to arrive at the trial
on the second summons. Usually, it
is carried out if the defendant is stillin the detention and the witness isthe victim of the defendant.
VI. EXECUTION OF PUNISHMENT
Pursuant to Article 270 of the Act on
Criminal Procedure, which is also signified
by Act No. 5/1991 on Prosecution Serviceof the Republic of Indonesia, the executionof punishment which has become final andbinding shall be carried out by the publicprosecutor. For this purpose, a copy of theexecution of punishment shall be sent to
the public prosecutor by the clerk. Then,the public prosecutor shall send, a copy ofthe minutes on the execution of thepunishment signed by himself, by the headof the correction agency and by theconvicted person, to the court which

decided the case in the first instance andthe clerk shall record it in the register ofsupervision and observation.
For the purpose of supervision andobservation, in every court there must be
a judge who is given the special duty ofassisting the head in carrying out thesupervision and observation with regard to
the punishment of depriving liberty.
Therefore, it is clear that the executor ofpunishment is the public prosecutor which
is different in civil law enforcement. The
executor of civil law is the clerk of the court.
VII. PUBLIC PROSECUTORS’INVOLVEMENT IN NATIONAL
CRIMINAL JUSTICE POLICY
Public prosecutors are also involved in
the activities of, inter alia, in the promotionof legal public awareness, precaution as ameasure in securing law enforcement
policy, precaution as a measure of securityof the printed matter circulation, thesupervision of mysticism which can
endanger the society and the state, theprevention of misuse and/or blasphemy ofreligion and the research and developmentof law and administrative matters.
Additionally, public prosecutors represent
the state or government inside as well as
outside the courts in regards to national
justice policy.
Coping with the public prosecutor’s
involvement in national justice policy, theProsecution Service has five missions, i.e.:(1) To secure and defend Pancasila as theIndonesian philosophy against any
attempts which can shake thecoexistence of the society, nation andstate.
(2) Must be capable of giving shape tothe legal security, rule of law, justiceand truth based upon the law and ofobserving the norms of religion, goodmanners and morality; and also be
obligated to delve into the living
values of humanity, law and justicein the society;211

RESOURCE MATERIAL SERIES No. 53(3) Must be capable of being fully
involved in the development process,inter alia, having a share in thecreation of conditions andinfrastructure which support andsecure the implementation ofdevelopment in order to give shape
to the just and prosperous society
based upon Pancasila;(4) Safeguarding and enforcing theauthority of the government andstate of the Republic of Indonesia;and(5) To protect the interest of the people
through law enforcement.
Implementation of those missions are
conducted by the Attorney General, who is
assisted by one Vice-Attorney General andsix Deputy Attorneys General. It is clearthat Indonesian public prosecutors are
involved not only in law enforcement but
also in the implementation of the national
development programs. The involvementof the Attorney General, heads of the High
Prosecution Offices and heads of theDistrict Prosecution Offices related to eachlevel, as the chiefs of the Committee ofSupervision for General Elections, is a good
example of this matter.

212

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
APPENDIX ATOTAL NUMBER OF PERSONNEL
IN THE INDONESIAN PROSECUTION SERVICE(August 18, 1997)
RegionThe Attorney General Office (Headquarters)
Aceh Special Region
North Sumatera
West Sumatera
Riau
Jambi
South Sumatera
Bengkulu
Lampung
Jakarta District CapitalWest Java
Central Java
Yogyakarta Special Region
East Java
Wesk Kalimantan
Central Kalimantan
South Kalimantan
East Kalimantan
North Sulawesi
Central Sulawesi
South East Sulawesi
South Sulawesi
Bali
West Nusa Tenggara
East Nusa Tenggara
MalukuIrian Jaya
East Timor
Secondment
Grand Total

Prosecutor
423
124
336
131
132
94
187
62
141
212
551
428
99
589
104
88
136
122
101
107
56
289
128
82
107
131
87
73
8
5,128

Other Staff
1,709
312
619
366
282
185
380
123
246
532
1,245
1,334
461
1,077
203
159
199
118
203
167
141
568
308
208
257
234
179
174
0
11,989

Total
2,132
436
755
497
414
279
567
185
387
744
1,796
1,762
560
1,666
307
247
335
240
304
274
197
857
436
290
364
365
266
247
8
17,117

Source: Bureau of Personnel Affairs, Office of the Attorney General.

213

RESOURCE MATERIAL SERIES No. 53
APPENDIX B
NUMBER OF GENERAL CRIME CASESACCEPTED BY THE ATTORNEY GENERAL’S OFFICE(April 1996 – March 1997)
DisposalHigh Prosecuting
OfficeBacklogof 1996

Receipt
in 1997

Total in1997

Aceh Special Region
North Sumatera
West Sumatera
Riau
Jambi
South Sumatera
Bengkulu
LampungWest Kalimantan
Central Kalimantan
East Kalimantan
South Kalimantan
West Java
Jakarta District Capital
Central Java
Yogyakarta Special Region
East Java
North Sulawesi
Central Sulawesi
South East Sulawesi
South Sulawesi
Bali
West Nusa Tenggara
East Nusa Tenggara
MalukuIrian Jaya
East Timor
Total

545
2,074
560
285
295
1,340
499
697
537
148
313
1,376
4,061
9,056
1,307
125
2,109
2,800
531
524
1,492
336
918
777
1,047
170
123
34,045

281
5,550
1,310
1,539
850
3,632
724
1,815
1,406
815
2,154
1,884
9,621
5,633
6,162
940
1,635
1,220
845
871
3,506
1,559
923
1,130
1,194
1,001
371
59,571

1,826
7,624
1,870
1,824
1,145
4,972
1,223
2,512
1,943
963
2,467
3,260
13,682
14,689
7,469
1,065
3,744
4,020
1,376
1,395
4,998
1,895
1,841
1,907
2,241
1,171
494
93,616

Stopping
Investigation
Stopped Become Pending Appro- InapproInvestiga- Cases
in 1997 priate
priate
tion
81
1,264
481
76
5
130
4,832
2,662
122
8
12
1,179
679
9
3
13
1,497
314
9
4
13
832
300
13
–
8
3,594
1,370
6
2
4
659
560
–
4
2
1,723
787
2
–
5
1,300
638
4
1
3
831
129
1
2
13
2,198
256
3
10
44
1,829
1,387
44
–
25
9,560
4,097
19
6
3
5,356
9,330
–
3
32
6,166
1,271
29
3
1
925
139
–
1
15
1,548
2,181
3
12
10
1,050
2,960
2
8
20
798
558
17
3
–
1,027
368
–
–
36
3,223
1,739
1
35
30
1,444
421
30
–
55
889
897
11
44
14
1,032
861
2
12
54
1,010
1,177
14
40
23
974
174
17
6
9
293
192
5
4
655
57,033 35,928
439
216

Source: Office of the Deputy Attorney General for General Crime.

214

SUPREME
COURT

COORDINATINGMINISTERSAPPENDIX CDEPARTMENTSMINISTERS OF
PORTFOLIOSGOVERNOR OFBANK INDONESIAHOUSEOF REPRESENTATIVESATTORNEY
GENERALPRESIDENT
VICE PRESIDENTMINISTERS OF
STATE

SUPREME ADVISORYCOUNCILPEOPLE’S CONSULTATIVEASSEMBLYORGANIZATIONAL STRUCTURE OF THE
NATIONAL GOVERNMENTCOMMANDER-INCHIEF OF THE
ARMED FORCESSTATE AUDIT
BODY

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

215

216

LEGAL ANDPUBLIC RELATIONSBUREAUPUBLIC PROSECUTION OFFICE

HIGH/PROVINCIAL
PUBLIC PROSECUTIONLAW INFORMATIONCENTRE

DIRECTORATE FORINTELLIGENCE PRODUCTAND EQUIPMENTFINANCE
BUREAURESEARCH AND
DEVELOPMENT CENTRE

DIRECTORATE FORSUBVERSION CRIMESDIRECTORATE FOR
OTHER GENERALCRIMES

DIRECTORATE FOR
SOCIAL AND
CULTURAL AFFAIRSPERSONNEL
BUREAUEDUCATION AND
TRAINING CENTRE

DIRECTORATE FOR
CORRUPTION CRIMESDIRECTORATE FORCRIMES AGAINSTLIFE AND PROPERTYDIRECTORATE FORECONOMIC AND
FINANCE AFFAIRSGENERAL
BUREAUEQUIPMENTBUREAUDIRECTORATE FORECONOMIC CRIMESSECRETARIAT

DEPUTY A.G. FOR
SPECIAL CRIMESDIRECTORATE FOR CRIMESAGAINST THE STATE AND
PUBLIC OFFICERSECRETARIAT

DEPUTY A.G.
FOR GENERAL CRIMEINTELLIGENCEOPERATION CENTRE

DIRECTORATE FORREHABILITATION AND
PROTECTION OF
CIVIL RIGHTSDIRECTORATE FOR
ADMINISTRATIVE CASESDIRECTORATE FOR
CIVIL CASES

SECRETARIAT

DEPUTY A.G. FOR
CIVIL AND ADMINISTRATIVEAFFAIRSSTAFF OF SPECIALISTS/Expertise

DIRECTORATE FOR
POLITICAL AFFAIRSSECRETARIAT

DEPUTY A.G.
FOR INTELLIGENCE
AFFAIRSSTAFF OF THE A.G.

ATTONEY GENERAL (A.G.)
VICE ATTORNEY GENERALORGANIZATIONAL STRUCTURE OF THE
PUBLIC PROSECUTION SERVICEPLANNING
BUREAUSECRETARIAT

DEPUTY A.G.
FOR ADVANCEMENTAPPENDIX DLEGAL INFORMATIONAND CRIMINALSTATISTICS CENTRE

INSPECTION FOR SPECIAL
CASES CIVIL CASES AND
ADMINISTRATIVE CASESINSPECTOR FOR
GENERAL CRIMESINSPECTORFOR INTELLIGENCE

INSPECTION FOR IMAGE
EQUIPMENT AND
DEVELOPMENT PROJECTINSPECTOR FORPERSONNEL AND
GENERAL TASKSECRETARIAT

DEPUTY A.G.
FOR SUPERVISIONRESOURCE MATERIAL SERIES No. 53

p

e

a

l
30
Head ofCompetentHigh Court

50
Chief Justice of
the Supreme
Court

Total maximum length of detention period

Justice of the Supreme
Court (art. 28)

Cassation (Second Appeal)

Presiding Judge at High
Court (art. 27)

p

30

Presiding Judge at
District Court (art. 26)

A

Head ofCompetent
District Court

20

Public Prosecutor(art. 25)
Head ofCompetent
District Court

PublicProsecutor

By

60

60

60

30

40

Maximum(days)

Extension

20

I n s t a n c e

ValidMaximum(days)

Investigator (art. 24)

F i r s t

Detention Warrant
Issued by

410

110

90

90

30 + 30

30 + 30

Extreme Exceptional Extension

Chief Justice of the Supreme
Court

Justice of the Supreme Court

Head of Competent High Court 30 + 30

Head of Competent District 30 + 30
Court

50

Maximum(days)

Head of Competent District 30 + 30
Court

By

Exceptional Extension (art. 29)

60

Total
(days)

DETENTION PERIOD ACCORDING TO ACT NO. 8/1981 ON CRIMINAL PROCEDURE

APPENDIX E

700

170

150

150

110

120

Total

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS217

RESOURCE MATERIAL SERIES No. 53

THE ROLE AND FUNCTION OF PROSECUTION IN
CRIMINAL JUSTICE
Jonathan John Mwalili*
I. INTRODUCTION
A reference to the history of Kenya isessential in understanding the various
sources of the law. Before Kenya gained
her independence and became a Republic
on 12 December 1963 and 1964
respectively, it was a British colony, andthere was also the ten-mile coastal strip
protectorate under the Sultan of Zanzibar.
Upon colonization, the English law wasapplied to Kenya. It included the substanceof the common law, the doctrine of equity
and the statutes of general application inforce in England on 12 August 1897,
together with the procedure and practiceobserved in the courts of justice in Englandat that date.
The English law that was applied to
Kenya could only be applied so far as thecircumstances of Kenya and its inhabitants
permitted. The reception clause also
recognizes the existence of the various
customary laws, including Islamic andHindu law that were in operation before
colonization.
With the attainment of independence andon becoming a republic, there came into
being the republican constitution whichbecame the supreme law of the land andhence a source of law in Kenya. Judicial
precedent is an invaluable source of law.
Decisions of the superior courts of records,
the High Court and the Court of Appeal, arereported in law reports such as the Kenya
Law Reports, the East African Law Reports
and the Eastern African Law Reports.
There are also English law reports, notably,
the All England Law Reports.
* Officer in Charge of Prosecutions, Prosecutions
Branch, High Court-Nairobi, Kenya.

218

II. ORGANIZATION OF
PROSECUTION
A. Office of the Attorney-General
The Attorney-General is a constitutional
officer, and his office is an office within the
public service. He is the principal adviser
to the Government of Kenya and is also thechief public prosecutor. His role is not
limited to the constitutional functions ofadvising and controling criminal
prosecutions, but extends to a multitudeof other functions such as:(1) appearing in court on behalf of thegovernment in civil litigation inwhich the government is a party;(2) acting as a counsel for Parastatals incourt;(3) drafting bills for presentation inparliament, etc.;(4) preparing international agreements,
treaties and commercial agreements
involving the Government of Kenya
and foreign States or bodies;(5) supervising the Registrar-General’s
Department which deals with theregistration of companies, trademarks, patents, books and news
papers, marriages, births and deaths,
and trade unions, welfare societies
and chattel mortgages; and(6) supervising of the Public Trustee, theLaw Reform Commission, the Kenya
School of Law, and the Office of the
Official Receiver.
The role of the Attorney-General in thiscontext will be limited to the examinationof his advice and prosecutions in criminalcases. The Office of the Attorney-Generalis arranged in a vertical manner with the

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Attorney-General at the apex and the State
Counsel at the bottom. See Figure 1.
In addition to being the principal adviser
to the government and chief publicprosecutor, the Attorney-General is also an
ex-officio member of the National Assembly,
a cabinet minister in the government andthe head of the bar (advocates). He is
appointed by the President.
Membership to the National Assembly
and the government assists the AttorneyGeneral in making decisions as to whether
to prosecute or not in offences that involve
public policy.
B. Constitutional Position of the
Attorney-General
In deciding whether or not to initiate aprosecution, the Attorney-General is not
subject to any person or authority.
Although Parliament is supreme in the
Kenyan system of government, it cannot,
in law, order the Attorney-General toprosecute. This independent exercise isillustrated in the reply to Parliament by aformer Attorney-General, Mr. Joseph
Kamere, when Parliament sought to haveone Stanley Munga Githunguri prosecutedon charges of contravening the provisionsof the Exchange Control Act. In his reply
the A.G. said:
Kenya as a constitutional governmentis totally committed to the rule of law.
We cannot talk of the rule of law
without an efficient machinery to
enforce the ordinary laws of the land.
The police, the judiciary and my office
are the components of that machinery,
and if any of those cogs break down,that essential machinery can easily
come to a grinding halt. Prosecution
is not persecution—what this House
has been subjected to is to challenge
the decision of the A.G., who decided
not to proceed against Mr. Githunguri
on the evidence contained in theinquiry file. This House makes laws
but does not execute them. The law

is left to persons of integrity, thosewith patience in their deliberations,
to consider whether to prosecute or
not to prosecute. The question as towhether to prosecute or not toprosecute is entirely left to thediscretion of the A.G. In this country,
we believe in the rule of law; webelieve in the separation of the
judiciary; and we also believe that you
cannot be a judge and prosecutor.
Prosecution and not prosecution, play
one of the most important roles in theadministration of criminal justice inany form of a constitutional
government.
This statement illustrates theseparation of powers of the government
into the legislative arm (Parliament) the
executive and the judiciary organs ofgovernment, which play mutually exclusive
roles.
Officers subordinate to the AttorneyGeneral who act in accordance with his
general instructions are: the SolicitorGeneral, the Deputy Public Prosecutor; theAssistant Deputy Public Prosecutor; andall State Counsels, at the State Law Offices
Nairobi and in the Provincial and District
State Law Offices. Section 26 (4) of theConstitution gives all of them the authority
to instruct the Commissioner of Police andofficers subordinate to him, to carry out
investigations into various offenses and todirect, generally, prosecutions in the
country. (See Figure 1.)
The Attorney-General and officers
subordinate to him and acting inaccordance with his general or special
instructions have the constitutional
authority to institute and undertake
criminal proceedings against any person
before any court (other than a courtmartial) in respect of any offense alleged
to have been committed by that person. He
also has the authority to take over andcontinue any criminal proceedings that219

RESOURCE MATERIAL SERIES No. 53
have been instituted or undertaken byanother person or authority) popularly
known as private prosecutions). He has
the authority to discontinue at any stage
before judgment is delivered any suchcriminal proceedings instituted orundertaken by himself or another person(private prosecution) or authority (e.g., thepolice force).
C. Decision to Prosecute and theRole of a Prosecutor
The decision to prosecute is the mostproblematic role of a prosecutor. Unlike
other areas of the law where it is possible
to resort to reported or unreported
authorities, there are no such authorities
to guide a prosecutor in reaching a decision
as whether to mount a prosecution or not.
The problem is compounded by the fact that
the Attorney-General, as the chief publicprosecutor, rarely makes public his reasonsfor mounting or discontinuing aprosecution. Unlike a court which has theopportunity of determining the credibilityof witnesses, the Attorney-General and his
officers have to rely on the statements of
the witnesses in the investigation files.
In some cases a prosecutor, after
perusing the file, may get the impressionthat there is prima facie evidence against
the accused, but in the course of aprosecution the witness turns out to be
incredible or hostile. The net effect is thatno such case is made out to require an
accused being put on his defense; forexample, cases involving relatives.
Factors influencing the decision toprosecute include:
1. The existence of prima facie evidence.
The evidence upon which a court,
properly directing itself upon law andevidence, is likely to convict in theabsence of an explanation from theaccused. (This is a judicial definition.)
2. The attitude of the complainant. All
offences are committed against the220

State and thus the attitude ofcomplainant should not influence a
withdrawal of a case. However, insome cases the complainant’s attitudeis taken into account in deciding
whether a prosecution is warranted.
For example, when the accused is arelative of the victim, the item stolen
has been recovered, and the parentsof the accused pressure thecomplainant to withdraw the case.
3. Health of accused. Where an
accused’s health is poor, prosecution
may be discontinued, especially interminal illnesses.
4. Humanitarian factor. It is a cardinalrule that a prosecutor has to be fairand not oppressive. This is a factor
that should be borne in mind inconsidering whether a considerationof a prosecution is merited. For
example if a husband and wife arecharged and the husband dies in theprocess, the case against the wife
could be withdrawn.
5. Public interest. The A.G. has toassess whether the public interest
will be served best by the prosecution.
Therefore, the A.G. makes
consultation with his cabinet
colleagues, especially in politicalcases.
6. G r a v i t y o f t h e o f f e n c e , t h ecircumstances surrounding thecommission of the offence and its
nature determine the gravity; e.g.,
trespass to land and assaults arisingout of vendetta or are intended tosettle old scores.
7. Impact on international relations.
Where two sovereign states are
involved, it is a good practice toconsider the impact of such intended
prosecution on the relations between
the affected States.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
D. Withdrawal from Prosecution in
Trials before Subordinate Courts
1. Section 87 of the C.P.C
The Attorney-General may, in a trial
before a Subordinate Court, but not in theHigh Court, instruct a police prosecutor towithdraw from the prosecution of any
person. If the withdrawal is made before
the accused person is called upon to makehis defense, then the accused may bedischarged but may be re-arrested andcharged with the same offense based on thesame facts. If the withdrawal is made after
the accused has been called upon to makehis defense, then he shall be acquitted.
This power is delegated, through Legal
Notice No. 106/1984, to the Solicitor
General, Deputy Public Prosecutor,
Assistant Deputy Public Prosecutor; allPrincipal State Counsels; and Provincial
State Counsels in Central, Eastern, Coast,
Nyanza, Rift Valley and Western Provinces.
Those in the District State Law Offices do
not have the delegation, i.e., Machakos,
Embu, Meru, Kisii, and Eldoret.
2. Section 82 (1) of the C.P.C.:
Nolle Prosequi
The Attorney General may, in any
criminal case, whether in the High Court
or Subordinate court and at any stage ofthe case before verdict or judgment(whether judgment has been written or not
but before it is pronounced) enter a nolle
prosequi. He may do so orally (by statingin Court that he is entering a nolle prosequi
under this section) or in writing. There
upon the accused shall be at once bedischarged in respect of the charge forwhich the nolle prosequi is entered.
This discharge shall not, however,operate as a bar to subsequent proceedings
against him on account of the same facts.
This power is delegated under section 82
of the Criminal Procedure Code and Legal
Notice No. 106 of 1984 to the Solicitor
General, Deputy Public Prosecutor,

Assistant Deputy Public Prosecutor,
Principal State Counsels and Provincial
State Counsels. For clarity, there are some
Provincial State Counsels who are either
State Counsels I and State Counsels II.
These are allowed to sign the nolle prosequias Provincial State Counsels and not intheir respective designations.
The powers of the Attorney-General of
Kenya are the same with those of the
Attorney-General of England in thisregard. This power was explained by Lord
Dilhorne in the case of Gouriet v. Union of
Post Office Workers, (1977), 3 All England
Reports at page 88, when he said:
The Attorney-General has many
powers and duties. He may stop any
prosecution in indictment by enteringa nolle prosequi. He merely has tosign a piece of paper saying that hedoes not wish the prosecution tocontinue. He need not give any
reasons. He can direct the institutionof a prosecution and direct the
Director of Public Prosecutions to takeover the conduct of criminal
proceedings and he may tell him tooffer no evidence. In the exercise of
these powers, he is not subject todirection by his ministerial colleagues
or to the control and supervision of thecourts. If the court can review his
refusal to consent to a related action,
it is an exception to the general rule.
It is, therefore, correct to say that the
Attorney-General has the unfettereddiscretion to bring charges against a person
if he considers that any law has been
infringed by that person. He also has theprerogative to terminate the charges even
without assigning reasons.
Despite this, the High Court of Kenya
has ruled that the Attorney-General’s
discretion to discontinue criminal cases
under section 82 (1) of the C.P.C. should
not be exercised arbitrarily, oppressively,
contrary to public policy. The High Court

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RESOURCE MATERIAL SERIES No. 53
has an inherent power and duty to securefair treatment for all persons who arebrought before courts and to prevent an
abuse of the process of the court. To thislimited extent, therefore, the powers of the
Attorney-General to enter a nolle prosequi
are subject to the control of the court.
E. Power to Appoint Public
Prosecutors, Section 85 of the
C.P.C.
(1) The Attorney-General, by notice in
the Gazette, may appoint publicprosecutors for Kenya or for any
specified area thereof, and either
generally of for any specified case orclass of cases.
(2) The Attorney-General, by writing
under his hand, may appoint any
advocate of the High Court or person
employed in the public service, notbeing a police officer below the rankof Assistant Inspector of Police, to bea public prosecutor for the purposesof any cases.
(3) Every public prosecutor shall be
subject to the express directions of the
Attorney-General.
F. Qualification of Prosecutors
1. Prosecution counsels in the office of
the Attorney-General are qualified
advocates of the High Court who have hadlegal training. However, due to theshortage of lawyers, the Attorney-Generalis empowered under section 85 of the C.P.C.
to appoint public prosecutors. Pursuant tothis statutory power, the Attorney-General
has appointed police prosecutors who act
as advocates, although they are not lawyers
by training.
2. Police Prosecutors
Unlike private prosecutions, the right ofthe police to prosecute is by virtue ofdelegated power from the A.G. under
section 85 of the C.P.C. It is significant tonote that under section 14 of the Police Act,

222

prosecution is not mentioned as one of thefunctions of the police force, which confirms
the fact that the prosecutorial powers
vested in them are derived from a delegatedpower. Most prosecutions in this country
are conducted by police in the Magistrate’s
Courts and, as prosecutors, they fall under
the direct control of the Office of the
Attorney-General. However, when they are
performing normal police duties, they fallunder the direct control of theCommissioner of Police. (See Figure 2.)
To qualify to be prosecutors, they mustbe at the rank of Police Inspectors. They
undergo a training for four months before
joining the prosecutions branch. In termsof the organization, the Police Prosecution
branch falls under the Department of
Criminal Investigation (popularly known
as CID). At one time the entire CID wasunder the control of the A.G., coincidently
resembling the U.S. set-up. The CID ischarged with the responsibility ofinvestigating all serious criminal cases,
while the rest are dealt with by regularpolice. The A.G supervises police
prosecutions either in person or throughhis subordinate officers. This supervision
is achieved by the requirement of statutory
consent of the A.G. in respect of certain
offences including sedition, incest by males
and females, oral threats to kill, corruption
in office and the prosecution of foreigners.
The police prosecutors are not legallytrained. They prosecute before magistrates
while State Counsels appear both before
the magistrates and the judges of the High
Court on prosecution and on appeals. The
structure of the courts is shown in Figure 3.
III. STATUS OF THE PUBLICPROSECUTOR
The powers, authorities and functions
relating to the prosecution in Kenya are
vested in the Attorney General. These
powers may be and are delegated by him.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
While prosecuting, therefore, a
policeman is acting as the representativeof the A.G., and not as the representativeof the Commissioner of Police. In his
capacity as a prosecutor, a policeman issubject only to the directions andinstructions of the A.G. The police
prosecutor finds that he is, so to speak,wearing two hats. Sometimes it is hard toreconcile the two. If the police prosecutor
has any difficulty in this regard, he should
remember that his duty as a prosecutor isto the court.
A. The Task
The prosecutor should remember that it
is not his job to secure a conviction at all
costs. As Sir Horace Awory, one ofEngland’s greatest criminal judges said in
R vs. Banks, 2KB 621:
Counsel for the prosecution
throughout a case should not struggle
for a verdict against the prisoner, butthey ought to bear themselves rather
in the character of ministers of justiceassisting the administration of justice.
The prosecutor’s job is to see that all the
relevant facts, including those favorable toan accused, are placed before the court andto present those facts in an ethical, fair,dispassionate, firm and clear manner.
Prosecutors must refrain from all actions
which could lead to the conviction of
innocent persons. However, this objective
attitude must not detract from the fact thatas a prosecutor he is acting on behalf of an
aggrieved party, the State. It is as much a
miscarriage of justice for guilty persons tobe acquitted as for the innocent to beconvicted.
Consequently the air of detachment thatthe prosecutor should display does notmean that he must not present his casevigorously. Ideally whatever the results at
the end of the case, the prosecutor shouldbe able to say that he has done his best.

In the words of a former AttorneyGeneral, Justice M.G. Muli:
As prosecuting counsels we never lose
or win cases. We only have a burden
upon ourselves to prove a case beyond
reasonable doubt in criminal casesand on balance of probabilities in civil
cases. In this regard, we must place
before this court all facts concerning
the case and must be fair, honest,
frank, courteous and respectful when
doing so. In our system, theconstitution allows for a conviction
and an acquittal, so we should nottherefore strain after a conviction, wemust always seek to see that justiceis not only seen to be done but that it
is done.
In Bukenya and others v. Uganda, it washeld that the prosecution must makeavailable all witnesses necessary toestablish the truth even if their evidence
is inconsistent and that under certain
circumstances the court, on its volition, hasa duty to call witnesses whose evidence
appears essential to the just decision of thecase.
The role of the prosecutor is that of anagent of justice and as an advocate in court
represents the public, including thecomplainant who is the victim of the somecrime of which the public is interested in
knowing the truth through fair prosecution
in court. The reason why the role of theprosecutor is different from that of an
ordinary advocate was summed up by the
U.S. Supreme Court in Berger v. UnitedStates, 55 s. ct. 629 (1935):
The [prosecutor] is the representative
not of an ordinary party to acontroversy, but of a sovereignty
whose obligation to govern
impartiality is as compelling as its
obligation to govern at all, and whose
interest, therefore, in a criminal
prosecution is not that it shall win acase, but that justice shall be done.

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As such, he is in a peculiar and very
definite sense the servant of the law,
the twofold aim of which is that guilt
shall not escape or innocence suffer.
He may prosecute with earnestness
and vigor-indeed, he should do so. But
while he may strike hard blows, he is
not at liberty to strike foul ones. It is
as much his duty to refrain from
improper methods calculated to
produce wrongful conviction as it is
to use every legitimate means to bringabout a just one.
If the accused is acquitted, theprosecutor should not feel that he has “lostthe case” for the State does not “lose” if oneof its citizens is acquitted on a criminal
charge. The prosecutor should be able tosay that the accused was acquitted only
because the evidence was insufficient tosupport a conviction. He should never haveto say that although the evidence wasotherwise satisfactory he failed to conduct
his case properly.
It is as well too to remember the salutary
words of a great South African judge,
Curlewis J. A, in the case of R. v. Hepworth,1928 AD 265 at 277:
A criminal trial is not a game where
one side is entitled to claim the benefitof any omission or mistake made by
the other side, and a judge’s position
in a criminal trial is not merely thatof an umpire to see that the rules of
the game are observed by both sides.
The prosecutor stands between thepolice and the citizen and is expected tomake sure that a prima facie case is madeout in respect of each charge before theaccused is put to the expense andinconvenience of being brought to court andcalled upon to plead.
B. Presentation of the State Case
The prosecutor must understand all thefacts of his case and be able to present themin a clear and logical sequence so that the224

court is able to follow the evidence with theminimum of mental effort. From themagistrate’s point of view, it is relatively
easy to try a case which is presented in a
logical sequence and in such a way that therelevance of each piece of evidence isreadily apparent.
A properly presented case enables themagistrate to concentrate on his prime
duty of judging the innocence or the guiltof the accused. It should not be necessary
for the magistrate to have to shoulder the
additional burden of trying to follow a badly
presented case.
It is a waste of every one’s time to
produce unrelated and unexplained facts
and exhibits before the court and expect
the magistrate to be able to understandwhat they are all about. In addition, it isunfair to the accused who should also beable to follow the evidence with theminimum of difficulty.
It is also the duty of the prosecutor toensure that a correct charge is filed against
the accused person. Section 214 of the
Criminal Procedure Code empowers thecourt to amend or substitute a charge if theoriginal charge is shown to be defective.
The ease with which a prosecutor is able
to present and prosecute his case is directly
proportional to the amount of preparatory
work he carries out. He must read the filecarefully, he must know or find out therelevant laws; and he must plan thepresentation of his case with care andcommon sense.
The magistrate’s burden is greatly
increased when the prosecutor is
inexperienced. As pointed out by theSupreme Court in S. v. Manger, 1985 (1)ZLR 272:
It is not part of the magistrate’s job toassist an inexperienced prosecutor.
The ways in which a magistrate may
assist a prosecutor are strictly limited
and no prosecutor should ever appear
in court feeling that if things go wrong
during the trial the magistrate will
help him.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
The prosecutor does not go into court justto lead in evidence of the facts containedin his file. His job is more exacting thanthat. He has to lead the evidence, judge
its veracity and effect on the court, form
an opinion concerning what facts seem tobe common cause and what facts are indispute and be prepared to argue themerits of his case, either on a point of law
or on the facts. To do this, he must take asustained and intelligent interest in all theevidence given.
Prosecuting is hard work and theprosecutor must be on his toes all the time.
The successful prosecutor is always
learning something new.
C. Legal Ethics
Public prosecutors, whether admitted aslegal practitioners or not, are bound by the
ethics of the legal profession. Members of
the legal profession are bound by strict
rules, which are administered by the law
society. These rules are intended primarily
to protect the public, particularly theclients of the legal practitioners, but arealso intended to maintain an acceptablelevel of conduct within the profession itself.
The rules, thus, regulate dealings between
lawyers and the conduct of lawyers in theirdealings with the courts. Publicprosecutors do not have clients, as such,
but they deal with members of the publicin the form of the accused and thewitnesses and with defense lawyers. A
major part of their task involves dealing
with the courts.
The public nature of a prosecutor’s task
makes it is essential that his conduct in
the performance of that task be above
reproach.
“Ethics” involves a consideration of
moral questions. Conduct which is ethicalis morally correct and honourable. As
mentioned above, the prosecutor’s task is
not to win at all costs. It would be easy to
win cases if one was dishonest or devious.
In a civilized country which adheres to therule of law, such conduct is completely
unacceptable, being as it is immoral andthus unethical.
Prosecutors are bound by ethical rules
at all stages of their task, not merely whenpresenting a case in court. Ethicalconsiderations arise before and after thestart of court proceedings and even whena prosecutor is off duty.
IV. PRIVATE PROSECUTIONS
A. The Attorney General in Kenya is the
Director of Public Prosecutions. The
authority is given to him by theConstitution of Kenya in section 26 (3)thereof to institute and undertake criminal
proceeding against any person in Kenya
and before any court (except a courtmartial) and in respect of any offense. A
prosecution is the process of institution andundertaking criminal proceedings against
any person in a court of law. The Attorney
General is, therefore, responsible for all
public prosecutions in the country. Every
public prosecutor shall be subject to his
directions.
B. There may be certain instances wherea private person may wish to institutecriminal proceedings against another.
First and foremost, there is noconstitutional provision for this, i.e., theConstitution of Kenya has not, as it hasdone in the case of the Attorney General,
expressly authorized a private person to
institute and undertake criminal
proceedings. However, the Criminal
Procedure Code, which is subordinate to
the Constitution, has under section 88
thereof, permitted a private person to
conduct a criminal prosecution against
another with permission of the court. Thissection reads:(i) A Magistrate trying a case may
permit the prosecution to be
conducted by any person, but noperson other than a public225

RESOURCE MATERIAL SERIES No. 53
prosecutor or other officer generallyor specially authorized by the
Attorney-General in this behalf
shall be entitled to do so without
permission.
(ii) Any such person or officer shall havethe same power of withdrawing
from the prosecution as provided bysection 87, and the provisions of that
section shall apply to withdrawal bythat person or office.
(iii) A n y p e r s o n c o n d u c t i n g t h eprosecution may do so personally orby an Advocate.
In private prosecutions, the A.G. is in law
entitled to take over a private prosecution
from the private prosecutor. After he hastaken over the private prosecution, the said
prosecution becomes a public prosecution
after which he may terminate theproceedings as was the case in Republic
Through Herman M. Asava & Another v.
Peter F. Kibisu, in which the accused wascharged with assault, confinement andmalicious damage to property.
In addition to this, the High Court of
Kenya has given the following guidelines
on how a private prosecution may beundertaken. This was done by the thenChief Justice A.A. Simpson and the lateJustice S. K. Sachdee when they stated on
12 July 1983 in H. Ct. Cr. Revision No. of
1983 Richard Kimani & S. M. Maina v.
Nathan Kahara as follows:
The right of private prosecution is aconstitutional safeguard. In thewords of LORD DIPLOCK in the
GOURIET CASE (Supra) at p. 498; itis useful constitutional safeguard
against capricions, corrupt or biased
failure or refusal of police forces andthe Office of the Director of Public
Prosecutions to prosecute offenders
against the criminal law...when an
application is made under section 88
to conduct a prosecution, we thinkthat the magistrate should question226

the applicant to ascertain whether areport has been made to the AttorneyGeneral or to the police and with what
result. If no such report has been
made, the magistrate may either
adjourn the matter to enable a report
to be made and to await a decision
thereon or in a simple case of trespassor assault proceed to grant permission
and notify the police of that fact.
The magistrate should ask
himself,How is the complainant
involved? What is his locus standi?
Has he personally suffered injury or
damage or is he motivated by malice,or political consideration?
C. It is a fundamental principle of law thatprivate rights can be asserted byindividuals and public rights can only beasserted by the Attorney-General as
representing the public. Even if it be truethat every citizen has sufficient interests
in seeing that the law is enforced, it does
not follow that every citizen has an interest
in an offense which has caused him no
damage or injury. The Attorney-General
has made his position clear. He will notallow private prosecutions, which are
motivated by personal vendetta or politicalconsiderations, to proceed. The guidelines
laid down in 1983 by the High Court asstated above must be followed. To allow
the mushrooming of private prosecutions
is to open doors to abuses of the criminal
process by individuals. Experience hastaught us that it is difficult to close suchdoors once they have been opened wide.
V. INSTITUTION OF
PROCEEDINGS
A. Proceedings may be instituted either by
the making of a complaint or by thebringing before a magistrate of a person
who has been arrested without warrant.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
B. A person who believes from areasonable and probable cause that anoffence has been committed by anotherperson may make a complaint thereof to amagistrate having jurisdiction.
C. A complaint may be made orally or inwriting, but if made orally, shall be reduced
to writing by the magistrate, and in either
case, shall be signed by the complainant
and the magistrate.
D. The magistrate, upon receiving any
complaint, or where an accused person who
has been arrested without a warrant isbrought before him, shall draw up or cause
to be drawn up and shall sign a formal
charge containing a statement of theoffence with which the accused is charged
unless the charge is signed and presented
by a police officer.
E. Where the magistrate is of the opinion
that a complaint or formal charge made orpresented does not disclose an offence, themagistrate shall make an order refusing
to admit the complaint or formal charge
and shall record his reasons for such andorder.
VI. PROVISIONS AS TO BAIL
When a person, other than a person
accused of murder, treason, robbery withviolence or attempted robbery withviolence, is arrested or detained without
warrant by an officer in charge of a police
station, or appears or is brought before acourt, and is prepared at any time while inthe custody of that officer or at any stageof the proceedings before that court to give
bail, that person may be admitted to bail.
Provided that, the officer or court may,instead of taking bail from the person,
release him on his executing a bondwithout sureties for his appearance.
The amount of bail shall be fixed with
due regard to the circumstances of the case,and shall not be excessive.

The High Court may, in any casewhether or not an accused person has beencommitted for trial, direct that the person
be admitted to bail or that bail required bya subordinate court or police officer be
reduced.
VII. PLEA BARGAINING
Plea bargaining is a new concept in the
E n g l i s h c r i m i n a l l a w. D u e t o i t sadversarial set-up, the parties or theiradvocates have no say in matters ofsentence which are peculiarly within theprovince of the trial court. The court hascomplete discretion as regards which
sentence should be passed, and theprosecution is not permitted to state that
an offence is serious as this is a matter forthe court to decide. It is strange, therefore,
to find the existence of plea bargaining in
our criminal law which is not only
adversarial in set-up in trials, but also does
not allow the parties or their advocates toenter into bargains with the court.
Plea bargaining is primarily arrived atgetting a lenient sentence for an accused
person. This is achieved as a result of
negotiations between the prosecution andthe defense whereby the prosecutor,
depending on the nature andcircumstances of the offence, may reduce acharge of murder to one of manslaughteror may decide to prefer a charge of simple
robbery instead of robbery with violence
which carries a death sentence. This could
be done in return for a plea of guilty by theaccused to the lesser offences.
In murder cases a judge is not bound to
take a plea of guilty to manslaughter even
if counsel for both sides have agreed to thiscourse of action.
In some cases, the prosecution may drop
all the charges against an accused person
in consideration of an accused becoming awitness in a more serious and complicated
case.

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Plea bargaining has its advantages anddisadvantages. Successful bargained pleas
do assist in reducing the backlog of casesin court. This increases the chances ofserious crimes ending up as minor
convictions which in turn may distort crime
statistics, which are vital in the study ofcriminology. As a result of plea bargaining,
the trial of an accused comes to a speedy
end as opposed to a charge hanging over
his head with uncertainty about theoutcome of the trial. If the trial is likely to
attract adverse press publicity, a plea of
guilty will put an end to this publicity.
VIII. SENTENCING
After the court has convicted an accused,
it proceeds to sentence. Defining what
sentence is a difficult exercise. It has been
defined as any order of the court made asa consequence of conviction, the aim ofwhich is to protect the innocent citizens ofsociety from the harmful acts of thecriminals.
Before sentencing, a prosecuting officer
is entitled as of right to inform the court
whether the accused is a first offender ornot. It was held in Shiani v. Republic that
it is improper for the prosecuting officer toinform the court that an offence is serious.
Under Kenya’s adversarial legal system,
this is a matter for the court to decide andto make findings since role of theprosecution is to present facts.
VIII. INVESTIGATING AGENCIES
Before a prosecution is mounted, there
has to be an investigation into the offence
allegedly committed. The investigation
will show the origins, the cause, themotives, the offenders and the surrounding
circumstances of the offence.
Some investigation may reveal
insufficiency of evidence to warrant aprosecution in court in which event thematter is close. Other investigations may
reveal sufficient evidence to warrant a

228

prosecution, yet a prosecution may not bemounted.
There are a number of agencies involvedin the investigation of crime as shown here
under:
A. The Police
1. Section 14 of the Police Act gives thefunction of the Kenya Police Force. The
Force shall be employed in Kenya for the
maintenance of law and order, thepreservation of peace, the protection of lifeand property, the prevention and detectionof crime, the apprehension of offenders, andthe enforcement of all laws and regulations
with which it is charged. It shall also be
the duty of the Force, provided in Section
16 of the Police Act, to regulate and control
traffic and to keep order on and prevent
obstructions in public places, and toprevent unnecessary obstructions on theoccasions of assemblies, meetings andprocessions on public roads and streets, orin the neighborhood of places of worshipduring the time of worship therein.
2. In the discharge of its functions, every
police officer shall promptly obey all lawfulorders in respect of the execution of his
office which he may from time to timereceive from his superiors in the Force. He
shall promptly obey and execute all orders
and warrants lawfully issued to him. He
shall promptly collect and communicate
intelligence affecting law and order andpromptly take all steps necessary to detect
offenders and bring them to justice and toapprehend all persons whom he is legallyauthorized to apprehend and for whose
apprehension sufficient ground exists.
Upon his enlistment to the Force, every
police officer swears that he will discharge
all the duties of a police officer according
to the law, without fear, favour, affection
or ill-will. The duty of investigation is
entrusted by the Commissioner of Police
to the Director of Criminal Investigations
Department covering the whole country.
See Figure 4.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
3. The Attorney-General, as the Directorof public prosecutions in Kenya, has theconstitutional role to instruct theCommissioner of Police to investigate any
matter which, in the Attorney-General’s
opinion, relates to any offense or suspected
offense [see section 26 (4) of theConstitution]. Upon being so instructed
the Commissioner of Police shall comply
with that requirement and shall report to
the Attorney-General upon completion of
the investigation. The power of the
Attorney-General may be exercised by him
in person or by officers subordinate to him
and acting in accordance with his generalor special instructions, The exercise of thisfunction the Attorney-General shall not be
subject to the direction or control of any
other person or authority.
4. The public is policed by the police, but
the police do police themselves.
Nevertheless, they are subject to laws of
the land. Where a police officer is alleged
to have committed an offence, he isinvestigated by fellow police officers. As amatter of police practice, the investigation
file has to be sent to the Director of the
Criminal Investigations Department andthereafter to the office of the AttorneyGeneral, who then decides whether aprosecution should be proceeded or not. It
is important to note that the CID sectionof the police force is charged with theinvestigation of serious crimes like fraud,murder and corruption. It also offers advice
and technical guidance in matters of crime
investigation to the police stations. Apartfrom CID, there are other specialized
sections within the police force like AntiStock theft, traffic and intelligence charged
with duties from which their titles arederived.
B. The Courts
The investigative role of the court
including the High Court as a trial court isvery limited due to the adversarial set-up
of Kenya’s legal system. Under this system

the role of the court is that of impartial
arbiters ensuring the observance of thetrial rules and thereafter the delivery ofjudgements.
1. Power to Summon Witnesses
Section 150 of the Evidence Act provides
that the courts may summon as a witness
any person whose evidence appears
essential to a just decision of the case. The
fact that the law permits the court to callwitnesses on its own volition is anindication that investigations are acontinuous process which end with the final
determination of the trial. It also showsthat investigation is not the exclusive
province of the police or the Office of the
Attorney-General. The difficulty faced by
the court in this enforced role wasexpressed by the former Court of Appeal
for East Africa in the case of Muriu andothers v. R. in the following words:
It has been said that a judge must notdescend into the arena so that his
judgement becomes warped by thedust of conflict. Conversely a judge
cannot sit in splendid isolation above
the conflict and not intervene evenwhen he detects a lacuna or ambiguityin the evidence.
2. Committal Proceedings
The investigatory role of the courts isclearly discernible in offences that are
triable only by the High Court. These
offences include murder and treason, which
are preceded by the holding of committal
proceeding before proceeding to trial. The
role of the Magistrate’s Court in thecommittal proceedings is to ensure that
only those cases where prima facie evidence
is disclosed that proceed for trial, thereby
excluding frivolous prosecutions. Once thecommittal bundles have been filed in court,
the committal magistrate after perusing
the bundles may make the following orders:229

RESOURCE MATERIAL SERIES No. 53(1) Commit the accused to stand trial in
the High Court.
(2) Commit the accused to stand trial in
the magistrates court competent to
try the offence. This will apply if it isa lesser offence like manslaughter(which is triable by a Senior,Principal or Chief Magistrate’s
Court).
(3) Discharge an accused.
(4) After discharging an accused, orderthat an inquest be held if thedeceased died in prison or police
custody.
The role of the High Court in committal
proceedings is very limited because it is thecourt that tries persons who have beencommitted for trial to itself.
3. Inquests
Closely related to the holding ofcommittal proceedings by the Magistrate’s
Courts is the conducting of inquests into
sudden or unnatural deaths in compliancewith sections 387 and 388 of the C.P.C. The
purpose of holding an inquest is todetermine the cause of death and thesurrounding circumstances where foul playis suspected or where a person has died inpolice or prison custody. At the conclusionof the inquest, the court may order for thearrest and charging of a suspect if theevidence discloses the commission of an
offence by the suspect. If at the terminationof the inquest the magistrate finds that anoffence has been committed by some person
or persons unknown, the magistrate isrequired by the law to send a copy of his
ruling to the Attorney-General who may
direct further investigations.
C. The Office of the AttorneyGeneral
1. The role of the Attorney-General in
the investigative process is indirectly tied
up with his prosecutorial powers as thechief prosecutor. In a number of offences,

230

the statutory consent of the AttorneyGeneral is required before a prosecution
can be mounted. These offences include
murder, sedition, incest, false claims, abuse
of office and the prevention of corruption.
Where a prosecution proceeds without the
sanction of the Attorney-General, theproceedings are null and void.
2. The fact that a prosecution of an
offence requires the consent of the
Attorney-General, does not stop the police
from arresting and charging a suspect incourt. However a trial does not begin until
the consent is filed in court. Where aprosecution requires the consent of the
Attorney-General, the investigating agency
has to send the investigation file to theoffice of the Attorney-General who, after
perusal of the same, may direct further
investigation, grant consent or direct awithdrawal of the charge against theaccused. The purpose of requiring theconsent is to ensure that there is prima
facie evidence to warrant a prosecution andalso that the charge is properly drawn out
since such charges are technical and,
therefore, need technical expertise.
3. The Attorney-General’s role in thecommittal proceedings in murder cases has
been considered. Apart from offences
requiring the Attorney-General’s consent
to prosecute, there are other cases of public
importance and interest that have to bereferred to him for directions. The
Attorney-General may also direct that an
inquest be held by a magistrate. In somecases, the Office of the Attorney-General
may simply advise the police to forward thefile to the magistrate, who will decide
whether or not to hold a public inquest.
4. The investigative role of the AttorneyGeneral ensures that only cases where
prima facie evidence is disclosed go for trial,and it also ensures that trials, are brought
to a speedy end by ensuring thatinvestigations are completed before a trial
commences; for courts are not supposed to
be used as commissions of inquiry.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
X. CONCLUSION
The criminal justice system starts assoon as a crime is reported to the police
and investigations start. A crime may bereported by the complainant or a memberof the public or it may have been committed
in the presence of law enforcement officers.
The Attorney-General is also empowered
under section 26 of the Constitution torequire the Commissioner of Police toinvestigate a matter where he thinks acriminal offense may have been committed.
Where investigations have taken place andthere is enough evidence to sustain acriminal charge in court, then prosecution
w i l l n o r m a l l y f o l l o w. U n d e r t h econstitution, the Attorney-General is incharge of criminal prosecutions. It is
important to emphasize that the decisionof whether or not to prosecute cannot
depend on and be entrusted to public
opinion. This would be tantamount toaccepting mob justice or instant justice.
The decision depends primarily on theinvestigation report carried out by theinvestigation agencies and whether thatreport contains enough evidence toestablish a prima facie criminal caseagainst a particular person. Hence is theextreme importance of thoroughinvestigations being carried out by thepolice and other investigation agencies inany criminal justice system. It is vital thatthe police and other investigation agencies
carry out proper investigation into allreported criminal cases. It is necessary tomention that failure by other criminal
justice agencies to work effectively andefficiently will greatly affect the role andfunction of the prosecution.

231

RESOURCE MATERIAL SERIES No. 53
Figure 1
THE STRUCTURE OF THE PUBLIC PROSECUTIONSATTORNEY-GENERALS CHAMBERS

ATTORNEY-GENERALSOLICITOR-GENERALDIRECTOR OF PUBLIC PROSECUTIONSASSISTANT DEPUTY PUBLIC PROSECUTORSENIOR PRINCIPAL STATE COUNSELPRINCIPAL STATE COUNSELSENIOR STATE COUNSELSTATE COUNSEL-ONE

STATE COUNSEL-TWO

232

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Figure 2
THE STRUCTURE AND ORGANIZATION OF THE KENYA POLICE FORCECOMMISSIONER OF POLICE

COMMANDANT
GSU

DCP
KPC

DCP
T&P

DCP
TRAF.

S\DCP
ADMIN.

DCP
ADM

DCP
PPOS

DCP
P\A

DCI

DCP
OPS

POLICE i\c
PROVINCE

PCIOS

POLICE i\c
DIVISIONS

DCIO

DSI

DCP
PRE-

D.S.
FINANCE

CMDt. CID TRNgSCHOOLPOLICE i\c
STATIONS233

RESOURCE MATERIAL SERIES No. 53
Figure 3
THE STRUCTURE AND ORGANIZATION OF THE CRIMINAL COURTS

COURT OF APPEALHIGH COURT OF KENYACHIEF MAGISTRATES COURTSENIOR PRINCIPAL MAGISTRATE’S COURT

PRINCIPAL MAGISTRATE’S COURTSENIOR RESIDENT MAGISTRATE’S COURTRESIDENT MAGISTRATE’S COURT

1st CLASS DISTRICT MAGISTRATE’S COURT

2nd CLASS DISTRICT MAGISTRATE’S COURT

3rd CLASS DISTRICT MAGISTRATE’S COURT

234

PCIO
NAIROBIAREA

O\CSPECIALUNIT

O\CPROSECUTIONSO\CDOCUMENT
EXAMINERDCIOSOC FLYING SQUAD

PCIORAILWAYSO\C
BANKINGFRAUDINVESTIGATIONS

PCIO
KAPU

O\C
BALLISTICSEXAMINER

PCIO
COAST

O\C
SCENES OF
CRIME

PCIO
PCIO
PCIO
PCIO
PCIO
PCIO
RIFT
WESTERN NYANZA CENTRAL EASTERN N\EASTERNVALLEYO\CO\CANTIINVESTIGATIONSNARCOTICS
BUREAU

DEPUTY DIRECTOR

DIRECTORCRIMINAL INVESTIGATION DEPARTMENT

THE STRUCTURE AND ORGANIZATION OF THE CRIMINAL INVESTIGATION DEPARTMENT

Figure 4

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

235

RESOURCE MATERIAL SERIES No. 53
Table 1ESTABLISHMENT AND STRENGTH—NAIROBI AREA

A. Judiciary
Nairobi Law Courts
Chief Magistrates
Senior Principal Magistrates
Principal Magistrates
Senior Resident Magistrates
Resident Magistrates
District Magistrate-1st Class
Total:

3
1
2
7
7
1
21

Makadara Law Courts
Principal Magistrates
Senior Resident Magistrates
Resident Magistrates
Total:

1
3
4
8

Kibera Law Courts
Principal Magistrates
Senior Resident Magistrates
Resident Magistrates
Total:

1
3
3
7

B. Prosecutors

Establishment
Strength

236

ACP
1

SSP
1
1

SP
2
1

C\I
4
2

I\P
35
35

NCO
5
1

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

THE ROLE AND FUNCTION OF PROSECUTION IN
CRIMINAL JUSTICE
Lithnarong Pholsena*
I. POSITION OF THE
PROSECUTION SYSTEM WITHINTHE NATIONAL ORGANIZATIONALSTRUCTURE AND ITSINDEPENDENCE AND
NEUTRALITY
The state apparatus of Lao PDR iscomposed of three main groups of Statebodies:(1) The National Assembly as thelegislative body;(2) T h e g o v e r n m e n t a n d l o c a ladministrative authorities as theexecutive body; and(3) The judiciary, which is composed of
the court system and the publicprosecution system. This is some how
different from the common
understanding of the word
“judiciary”. Nonetheless, the court
system and the prosecution system
exist as different bodies having theirown position and tasks. However,both are connected to the National
Assembly, to which they must reporttheir activities every three months.
The Office of the Public Prosecutor has
the role of monitoring and inspect theproper and uniform adherence to the law
by ministries, State committees, offices,
enterprises, other State organizations andlocal administrative authorities, civil
servants and citizens.
The duties of the Office of the Public
Prosecutor also include ensuring justice,
regularizing (and systematizing) society
and preserving the just rights and benefits* Deputy Director of Judicial System, Ministry ofJustice, Lao People’s Democratic Republic.

of all ministries, State committees, offices,
enterprises, other State organizations,
local administrative authorities, civil
servants and citizens.
Additionaly, the Office of the Public
Prosecutor contributes to the education andtraining of civil servants and citizens tomake them aware of and respectful of laws
and regulations in their daily lives.
The Office of the Public Prosecutor also
has a duty to:(1) Monitor and inspect the performanceof laws of all State agencies, offices,
enterprises, other State
organizations, civil servants andcitizens (general monitoring andinspection);(2) Monitor and inspect the performanceof laws by the investigationinterrogation agencies;(3) Monitor and inspect the performanceof laws in case processing in the
courts and the court’s decisionmaking;(4) Monitor and inspect the performanceof laws in places of arrests,
imprisonment, at the time that thedeprivation of liberty and other court
enforcement measures are being
applied;(5) Undertake prosecution against crimeand other violations of the law todispose of and terminate the causes
and the conditions which cause suchwrongdoing to arise;(6) E n s u r e c o m p l e t e , t h o r o u g hinvestigation and interrogation of all
criminal cases according to their
merits, and issue measures topreempt wrongdoing by coordinatingwith State agencies and other societalorganizations;237

RESOURCE MATERIAL SERIES No. 53(7) Ensure that offenders receive
punishment according to the law andnot allow innocent people to bepunished; and(8) U n d e r t a k e i n v e s t i g a t i o n a n dinterrogation of all or some portionsof any case within its authority as
provided by law.
Within the scope of its powers, a lower
level of the Office of the Public Prosecutor
has the right to undertake investigationand interrogation of cases according to andorder from a higher-level public prosecutor.
In such investigations andinterrogations, the public prosecutors may
assign civil servants to undertake
investigation and interrogation matters intheir place.
The Office of the Public Prosecutor atvarious levels consists of a uniform andcentralized system, lead by the Public
Prosecutor General.
Public prosecutors at the local levels(province, prefecture and district) andmilitary prosecutors perform their duties
independently and are not subject to theauthority of local State agencies. They are
only subject to the authority of the Public
Prosecutor General.
The Office of the Public Prosecutor of the
Lao People’s Democratic Republic
undertakes its activities based upon legal
acts in accordance with the Constitution
and the laws of the Lao People’s Democratic
Republic. It ensures the proper anduniform performance of the laws without
being subject to the local administrative
authorities; issues the necessary measuresin search of violations of the law and seeks
to eradicate all violations of the law; seeks
to restore the violated rights of thecitizenry; and prosecutes offenders in court.
As indicated above the prosecutors are
independent in performing their duties,
relying only on the laws and the
instructions of the Public Prosecutor
General.

238

Although public prosecutors are therepresentative of the State and the society,struggling against law violations andsupervising the respect of laws, it would
not be correct to consider them acorporation which blindly protects theState and the society. Carrying out theirduties, prosecutors must rely on the facts,
the actual situation, the evidence and thelaws. They have to be guided by a sense ofn e u t r a l i t y, t r u t h a n d j u s t i c e . N ointerference from outside can not be
admitted.
II. APPOINTMENT AND TRAINING
OF PUBLIC PROSECUTORS AND
THE GUARANTEE OF THEIRSTATUS
The Public Prosecutor General isappointed by the National Assembly
according to a proposal from the Standing
Committee of the National Assembly andhas a term of office equal to the term of the
National Assembly. He is responsible forreporting the activities of the Office of the
Public Prosecutor to the National
Assembly. When the Assembly is not insession, he reports to the Standing
Committee of the National Assembly.
The Public Prosecutor General isdismissed by the National Assembly
according to a proposal from the Standing
Committee of the National Assembly, andwhen the Assembly is not in session, theposition may be suspended temporarily by
the Standing Committee of the National
Assembly.
Deputy Public Prosecutors General areappointed and dismissed by the Standing
Committee of the National Assembly
according to a proposal from the Public
Prosecutor General.
Such prosecutors are responsible forreporting their activities to the Public
Prosecutor General and the prosecutors
below him, but perform according to the107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
orders of the Public Prosecutor General andhigher-level prosecutors only.
Up to now there is no special training
institution for public prosecutors in ourcountry. For the entire country, there is
only one law school, located in Vientiane.
Created at the end of 1986 with about 30
students for each entry, the law school now
has about 1150 students. From its
beginning to July 1997, it was under the
Ministry of Justice. From July 1997, it
became the law faculty of the National
University. Students who graduate fromthe law school work as judges, publicprosecutors, police officers, lawyers, etc.
Some of our public prosecutors
graduated from foreign universities, e.g.,in the former USSR and Viet Nam. Manyefforts are made to upgrade the knowledge
and skills of public prosecutors byorganizing for them seminars and study
tours for exchange experiences.
Actual field inspection and instruction
on the work of lower public prosecutors iscommonly used. Particularly groups of two
to three members of the Public Prosecutor
General’s Office travel throughout thecountry in order to know how provincial
and district public prosecutors carry out
their work and, if necessary, give them
instruction.
III. INVESTIGATIONIn Laos, the investigation-interrogation
agencies consist of:(1) The investigation-interrogation
agency of the police;(2) The investigation-interrogation
agency of the military;(3) The investigation-interrogation
agency of customs; and(4) The investigation-interrogation
agency of forestry.
The investigation-interrogation agencyof the police is under the Ministry ofInterior; that of the military is under the
Ministry of Defense; that of customs isunder the Ministry of Finance; that offorestry is under the Ministry ofAgriculture and Forestry. In many cases,
the police assist other investigationinterrogation agencies to carry out theirwork. Most criminal cases examined by
the courts originated with the police. But
only the prosecutor has the authority tosend offenders before the courts.
A. Rights and Duties ofInvestigation-Interrogation
Agencies
Investigation-interrogation agencies
have the following rights and duties:• Accept and record complaints
regarding offenses;• Report to the public prosecutor
regarding offenses;• Issue an order to commence
investigation-interrogation and to
immediately send a copy of the orderto the public prosecutors;• Proceed with investigationinterrogation;• Make use of preventative measures
as provided for in the law;
• Send a request to cancel an order ofthe public prosecutor to a higher-level
public prosecutor; and• Summarize the investigationinterrogation and compile a casedossier to be sent to the publicprosecutor.
In the exercise of such rights and duties,
the investigation-interrogation agencies
must adhere to the scope of their rights andauthorities as determined by theirrespective divisions.
B. Methodology Utilized by
Investigation-Interrogation
Agencies
1. The Rendering of Statements
An investigation-interrogation official ora civil servant investigator-interrogator

239

RESOURCE MATERIAL SERIES No. 53
must take a statement from the accused
immediately after the commencement of aninvestigation-interrogation. If therendering of such statement is impossible
to obtain immediately, such must be
documented immediately along withreasons (for such impossibility).
The rendering of a statement by theaccused must be performed at the Office of
the Investigation-Interrogation Agency of
the Civil Servant Investigator-Interrogator.
However, if necessary, such may be
performed at the house of the accused orat some other location.
Initially, in the rendering of thatstatement, the investigating-interrogating
official or the civil servant investigatorinterrogator must notify the accused of thechange, and explain to the concerned
individual his rights and obligations.
Each rendering of a statement must berecorded in writing by the investigatinginterrogating official or the civil servant
interrogator.
2. Questioning in the Presence of
OthersWhen statements are non-conforming,the investigating-interrogating official or
the civil servant interrogator has the rightto question those persons who gave theirstatements together. However suchquestioning shall involve no more than two
people at any time. Documentation of thequestioning of persons giving statementsin the presence of other persons who havegiven statements shall be performed inaccordance with Article 35 of the Law on
Criminal Procedure.
3. Incident Site Report
To search for evidence of an offence andmaterial evidence, and to allow thatc o n d i t i o n s o f a n o f f e n c e b e c l e a r,
investigating-interrogating officials or civil
servant interrogators must make an
incident site report and (gather) materials
and other documents.

240

The incident site report may be madebefore the commencement of theinvestigation-interrogation.
The incident site report must be madethe same day as the incident, except innecessary and urgent cases only.
At the time of the making of the incidentsite report, there must be at least two
witnesses. The investigating-interrogating
official or the civil servant interrogator has
the right to summon for the making of theincident site report the accused, a suspect,
an injured party, witnesses and experts.
In the incident site report, theinvestigating-interrogating official or thecivil servant interrogator must make asketch of the location of the incident, takephysical evidence or take photographs.
4. Death Reports
Investigating-interrogating officials or
civil servant interrogators must make adeath report at the location where theincident arose in the presence of at least
two witnesses and the doctor involved or
may make use of some other expert for their
preparation of the death report.
5. Document of the Report
In the incident site report or the deathreport, the investigating-interrogating
official or the civil servant interrogatormust state the location, date, time ofinitiation and the time of termination of
the inspection; the name and surname,address, profession, the position and thetitle of the investigating-interrogation
official or the civil servant interrogatorsand of the individuals involved in theinspection; all things observed or occurringat that time and anything seized.
After the documentation and reading of
the report, involved individuals in themaking of such inspection must sign suchreport.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
6. Appointment of Experts to
Conduct Inquiry
When it is deemed necessary to inquire
specifically into such issues in a case ofdeath by unclear causes or suspicions
regarding majority age, or the inability of
the accused to understand the charges or
circumstances in which he finds himself,
the investigating-interrogating official or
the civil servant interrogator must issue
an order to appoint an expert to conduct
such inquiry.
That order must state the name andsurname of the expert or the relevant
agency, the matter and the material orgoods which must be proved, the timerequired for the inquiry, the rights andobligations of the expert, and a statementof the expert’s liabilities involved in theinquiry.
The investigating-interrogating official
or the civil servant interrogator must notify
the accused, the injured party, the civil
plaintiff, or a civily liable party of suchorder. After the inquiry is concluded, theexpert must summarize his opinions andsend such to the investigatinginterrogating official or the civil servant
interrogator in accordance with the time
limits assigned.
An expert’s inquiry may be performed
many times.
7. Searches
Searches may be conducted only when
there is an order in writing from the Public
Prosecutor General or a court, except innecessary and urgent cases. However,there must be a reporting to the publicprosecutor within twenty-four hours after
such search has been concluded. Before
and after such search, the individuals
involved in such search must demonstrate
their (honesty and) integrity toward theowner of the searched premises.

a) Building searches
Building searches must be made in
the presence of a village-level authority,
the house owner and at least two
witnesses. In the case that there is asearch of an office, an agency or an
enterprise, it must be conducted in thepresence of a representative of suchoffice, agency or enterprise.
Searches of places of worship or
temples must have the participation ofa temple administrator.
Searches of buildings shall be
performed from six a.m. to six p.m.
In the case that searches are
conducted, but have still not ended, theyshall continue until completion.
Materials and documents can beseized as objective evidence only so longas there is a relationship and such
evidence has been used in thewrongdoing or such materials or
documents are illegal.
b) Searches of an individual
The search of an arrested person or
an imprisoned person suspected ofconcealing objects can be made without
an order (for such search). Officials
conducting searches must be individuals
who are of the same sex as the person
being searched.
The search of a female must be
conducted at enclosed premises.
c) Documentation of a search
When a building or an individual
search is concluded, the officials who
conducted such search must document
the search and account for such items
according to description, quantity andquality in detail.
Two copies of the documentation ofsuch search must be made and the
document must be read in the presenceof the participants and then signed by
all as evidence. One copy of such
documentation becomes a part of the241

RESOURCE MATERIAL SERIES No. 53
case dossier and the other copy is given
to the relevant house owner or the
representative of the office, agency,
enterprise or individual searched.
8. Seizure and Sequestration ofAssetsIn the case that the type, quantity, andlocation of materials related to the case areclearly known and such can be beneficial
in the processing of the case, theinvestigating-interrogating official or thecivil servant interrogator must issue anorder to seize such assets. For materials
which are movable, there shall be an order
to seize such. For materials which are
immovable, there shall be an order tosequester such.
9. Re-examination of Information
In order to inspect and confirm theaccuracy of any information, an
investigating-interrogating official or a civil
servant interrogator can re-examine
information.
In such re-examination, theinvestigating-interrogating official or thecivil servant interrogator may takephotographs, take measurements andmake sketches.
The re-examination of information shallbe made so long as it is deemed that suchis not endangering life or the environmentand does not cause damage to humandignity.
In such re-examination, there must be
at least two witnesses involved and there
may be the involvement of a suspect, an
accused, witnesses and injured parties. In
necessary cases, experts may also be
involved.
Documentation of the re-examination
shall be performed according to Article 41of the Law on Criminal Procedure.

242

10. Identification of Persons andConfirmation of Property
In necessary cases, investigatinginterrogating officials or civil servant
interrogators may allow witnesses, injured
parties, suspects or accused parties to
identify individuals or confirm materials
and corpses.
Before identification or confirmation, theperson identifying individuals or
confirming materials or corpses must makea statement regarding the conditions of
their observations, along with having seen
and having been aware of what they wereseeing, describing the physical features,and other special points of the individual
or material.
In the identification process, the person
to be identified must be in the presence ofat least three other individuals who have
similar physical features.
In the confirmation of property, theproperty to be confirmed must be placed
generally with at least three other goods
which have similar characteristics and areof the same type.
The documentation of the identificationof a person or the confirmation of property
shall be performed in accordance with
Article 41 of the Law on Criminal
Procedure.
IV. INSTRUCTION AND
SUPERVISION OF THE POLICE
AND THE COOPERATIONBETWEEN PUBLIC PROSECUTORSAND THE POLICE
In carrying out their duties concerning
the investigation-interrogation of thecriminal cases and particularly those which
are complicated, the police receives
instructions and is under the supervisionof the public prosecutor, who has theauthority:

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS• To instruct in writing regarding theinvestigation-interrogation,
preventative measures, evaluation of
an offense, performing investigativeinterrogative measures and thesearch of offenders;• To demand the criminal case dossier,documents and information
regarding the offense from theinvestigation-interrogation agency
for inspection;• To participate in the investigationinterrogation of the criminal case andin necessary cases he investigate andinterrogate on his own;
• To send the case dossier back to theinvestigation-interrogation agency
along with instructions in writing toallow additional investigationinterrogation;• To terminate an order from theinvestigation-interrogation agency ora civil servant interrogator which isillegal or is unreasonable;• To order that the investigatinginterrogating official or a civil servant
interrogator who has violated the law
during the case proceedings beremoved from the investigationinterrogation;• To c o m m e n c e i n v e s t i g a t i o n interrogation, suspend caseproceedings, close a case or refer asuit to court; and• To authorize a defender to participate
in a case from the date of the order tocommence the investigationinterrogation.
Cooperation between public prosecutors
and the police is very significant for the
success of criminal proceedings.
Experiences show that these two
institutions must cooperate.

V. ROLE OF PUBLICPROSECUTORS IN ARRESTINGAND DETAINING SUSPECTS
A. Arrest
The arrest of any individual must be
accompanied by an order in writing fromthe public prosecutor or the court, except
in cases where an offense is seen beingcommitted or in urgent cases.
Before the issuance of an order to arrest,
the public prosecutor or the court must
consider the following conditions:(1) The wrongdoing must be a criminal
offense upon which the law
determines the penalty to thedeprivation of personal freedom(liberty); and(2) The evidence which supports the casemust be weighty.
B. Detention
The detention must be accompanied byan order from the public prosecutor or the
court and must reference the conditions
mentioned above concerning arrest. The
public prosecutor must issue an order of
release for the accused immediately if thedetention has exceeded one year and there
is not sufficient evidence for a court case.
C. Indictment
1. Authorized Agency to Indict
and the Methodology
In Laos, there is no examining judge as
in France or other countries, who initiates
criminal proceedings against the accusedb e f o r e t h e t r i a l . We h a v e p u b l i c
prosecutors, one of the duties of whom is
to refer the criminal case to court.
The court shall accept a criminal casefor consideration only so long as there isan order for such to be referred to the court
from the public prosecutor.
The victim can not refer by himself(herself) directly a criminal case to thecourt. Before referring the criminal caseto court, the public prosecutor must243

RESOURCE MATERIAL SERIES No. 53
research the case which has been sent fromthe investigation-interrogation agency orfrom the civil servant interrogator and if it
is deemed that the basis for referring thecase to court (indictment) is sufficient, thepublic prosecutor must issue an orderreferring the matter to the courts. In
practice, indictment is composed of two
separate documents. The first is called“order to refer the accused to court”. It is a
short document which contains theindication “Public Prosecution of...”, firstand last names of the accused, charges andviolated articles of penal law, and thecriminal procedure law serving as the basis
for the indictment. The second document
called “public prosecutor’s statement”
contains the same items as the first one,but it also gives details concerning theaccused and the crime committed by him.
For example, in this document, there is a
description of the crime from the beginningto the end; the evidence concerning thecrime; the personality of the offender; andhow he should be punished by court.
The public prosecutor’s statement must
be convincing in all aspects that theoffender has committed the crime withwhich he is charged. For that the evidence
must have been gathered at the level it issufficient to confirm the accused is guilty.
2. Degree of Certainty Regarding
Guilt Required to Indict a
Suspect
It seems that our criminal procedure andour mentality require a high degree ofcertainty regarding guilt in order to indict
a suspect. The courts, public prosecutors,
civil servant investigators or investigatinginterrogating officials must submit theirevaluation or evidence with their belief in(acceptance of) such evidence based uponthorough and complete consideration of thecase, and based upon objectivity. In short,there must be no doubt about the guilt of
the offender sent to trial. That does notmean the offender is the “queen of proof”.

244

By law and in practice, the court in manycases declares guilty and sentences theaccused without the accused’s guilty plea.
Sometimes the guilty plea of the accusedleads to an error.
The evidence in criminal proceedings
has great significance. The decision of
courts depends on how is the evidence
gathered.
3. Exercise of Discretion in
Prosecution
The Law of Criminal Procedure of Laos
stipulates the following:
In the case that officials areinvestigating or interrogating or the
Public Prosecutor has found evidenceof an offense, an investigation orinterrogation must be commenced
within the boundary of theirauthority. There must be usage ofmeasures provided for in the law inorder to search for offenses andoffenders and then send such offender
to the courts for sentencing according
to the law.
So there can not be any discretion inprosecution. According to the law, thepublic prosecutor has no choice. If he/she
becomes aware of an offense, he/she must
initiate criminal proceedings against theoffenders.
4. Plea Bargaining
In our law, there is no plea bargaining.
There can not be an agreement between
the prosecution and the defense or between
the judge and the defense. If the accused
pleads not guilty and there is not sufficientevidence as to his/her guilt or there is cause
for of an exemption, the accused must be
acquitted. On the contrary, if there issufficient evidence indicating that theaccused has committed the crime and there
is no exemption of penal liabilities, he/shewill be punished. Moreover, if there iscause conductive to mitigation of penal

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
responsibilities, the penalty can be lesssevere. In Lao law, there are ten causes
conducive to mitigating penal
responsibilities. However in theprescription of penalties, the court mighttake into consideration other factors as
well.
D. Trial Proceedings
1. Proof of Criminal Facts
Criminal facts can be proved by different
means, e.g., witness statements,
statements of injured parties, statementsof suspect, statements of the accused,opinions of experts, material evidence,
investigation-interrogations documents,
court activities, and other documents which
relate to the case.
2. Cooperation for Speedy Trial
The criminal case referred to the court
from the public prosecutor must be
considered within one month from the dateof having received the case dossier from thepublic prosecutor.
In practice, it is difficult for the courts
to comply with this time provided for bylaw. Only a few criminal cases can beconsidered within one month from the datethat they arrive at the courts. Currently
courts face criminal cases dossiers not
being complete or unclear, and thus, theymust be given back to the public prosecutor
for additional investigation-interrogation.
Some common problems include that all theoffenders who committed the same crime
are not referred to the court; the offenderhas not been charged with all crimes
committed by him; and the evidence isunclear.
3. Securing Appropriate Sentence
Before all there are laws serving as abasis for imposing the sentence. The courtprescribes penalties on the punishment of
infractions. In prescribing penalties, thecourt must consider the features andnature of the social threat generated by the

infraction, the personality of the offenderand the circumstances of penal
responsibilities. In the law, there arecauses conductive to the litigation of penal
responsibilities and circumstantial causes
conductive to the increase of penal
responsibilities. In prescribing penalties,
the court must also take in account the factthat the infraction committed is at the
preparation stage or is attempted due toabuse, incitement or recidivism; theaccused is the first offenders; and so on.
4. Supervision of the Fair
Application of the Law
As mentioned above, the Public
Prosecutor General and lower-levelprosecutors monitor and inspect theperformance of the law at the courts so thatcases are processed properly, completely,according to their characteristics, forproper, legal and reasonable final
judgments.
Concerning sentences at the first or
second instance that the public prosecutor
consider unfair or illegal, they will be“attacked” by the public prosecutor. In
order for the public prosecutor to monitor
and inspect the judgments of the courts,
these are sent regularly to the prosecutor’s
office. Now the monitoring and inspection
by the public prosecutor of court judgments
is on the increase. Many criminal and civil
court judgments are attacked by the publicprosecutor.
E. Execution of Punishment
The organizations with the duty to
enforce decisions and court judgments are:(1) Judgment enforcement personnel ofthe court regarding civil damages incriminal cases;(2) Correction personnel regarding
punishment entailing the deprivationof personal liberty;

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RESOURCE MATERIAL SERIES No. 53(3) Governmental authorities or publicorganizations, an office or an
enterprise related to education andtraining.
A prison exists in each province. Thereprisons are in a bad situation. Some ofthem are in Savannakhet andKhammouane provinces, which were built
in the French time. However those built
recently are not much better. Sometimes
there is not enough room for all prisoners,
so “floors” are added for prisoners to sleep
on.
There is no trained personnel for the reeducation of offenders.
F. Public Prosecutor’s Involvement
in National Criminal Justice
PolicyNational criminal justice policy in ourcountry is included in the five-year plan ofsocio-economic development adopted by the
National Assembly. Each year, on the basisof this five-year plan, the government will
work out an annual plan of socio-economic
development. The Office of the Public
Prosecutor General, the Supreme Court
and the Ministry of Interior play animportant part in the conception of national
criminal justice policy. Now for example,
Laos is struggling against bad phenomena
occurring in our society: corruption,embezzlement of State properties,
narcotics, and trafficking in women andchildren.

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107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

THE ADMINISTRATION OF CRIMINAL JUSTICE IN
MALAYSIA: THE ROLE AND FUNCTION OF PROSECUTION
Abdul Razak Bin Haji Mohamad Hassan*
INTRODUCTION

PART I

Malaysia as a political entity came into
being on 16 September 1963, formed byfederating the then independent
Federation of Malaya with Singapore,
North Borneo (renamed Sabah) andSarawak, the new federation being
Malaysia and remaining and independent
country within the Commonwealth. On 9
August 1965, Singapore separated to
become a fully independent republic within
the Commonwealth. So today Malaysia isa federation of 13 states, namely Johore,
Kedah, Kelantan, Selangor, Negeri
Sembilan, Pahang, Perak, Perlis,
Trengganu, Malacca, Penang, Sabah andSarawak, plus a compliment of two federal
territories namely, Kuala Lumpur andLabuan.
Insofar as its legal system is concerned,
it was inherited from the British when theRoyal Charter of Justice was introduced in
Penang on 25 March 1807 under the aegis
of the East India Company. Appropriately,
the Malaysian legal system has not beenplucked out from the sky but it is the
product of our experiences over the
centuries; so does its criminal justicesystem which goes side by side with thedevelopment of its legal system. In
discussing the subject of The
administration of criminal justice,understanding the constitutional history
just cannot be avoided. Inadvertently, thelegal system that Malaysia inherited fromits colonial masters colours the pattern ofthe criminal justice system today.

A. Constitutional History
The territories of Malaysia had been partof the British Empire for a long time. Afterthe Second World War, there was a brief
period of British military administration.
A civilian government came into being in1946 in the form of a federation known as
the Malayan Union consisting of the elevenstates of what is now known as West
Malaysia. This Federation of Malaya
attained its independence on 31 August
1957. In 1963, the East Malaysian statesof Sabah and Sarawak joined theFederation and was renamed “Malaysia”.

* Deputy Head of Criminal Investigation
Department, Royal Malaysia Police, Sarawak
Contingent, Malaysia.

B. Parliamentary Democracy andConstitutional Monarchy
The Federal constitution provides for aparliamentary democracy at both federal
and state levels. The members of each statelegislature are wholly elected and eachstate has a hereditary ruler (the Sultan)
or Yang di-Pertua Negeri (Governor) in thestates of Malacca, Penang, Sabah andSarawak. The head of state must act inalmost all matters on the advice ofministers drawn from and responsible to
the State Legislative Assembly.
This pattern is repeated at the federal
level. Parliament is a bicameral
legislature, the lower House (the House ofRepresentatives) being wholly elected. The
federal head of state, known as the Yang
Di Pertuan Agong, who is appointed fromamong the nine Malay Sultans and serves
a five-year term, must act on the advice of
the Federal Cabinet or a minister acting
under the general authority of the cabinet.
The Prime Minister has to be a member of

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RESOURCE MATERIAL SERIES No. 53
the House of Representatives commanding
the confidence of the House. The Upper
House, the Senate, has two senators electedby each Sate Legislative Assembly and anumber of members nominated by theFederal Government.
All laws are passed by Parliament, andthere are bodies that see to its enforcement.
The interpretation of the laws lies mainlywith the judiciary. The country exercises
formal social control through theestablishment of a formal criminal justicesystem which is characterised by theexistence of criminal laws, law enforcement
agencies, prosecutors, judges, magistrates,
correction officials, prisons and otherinstitutions.
C. The Administration of Justice
The federal constitution provides for the
exercise of power by the Legislature, theExecutive and the Judiciary. The judiciary
plays an important role in this balance ofpower. It has the power to hear anddetermine civil and criminal matters, andto pronounce on the legality of any
legislative or executive of the federal aswell as state constitutions.
The fundamental principle in Malaysia
is that an accused person is innocent until
proven guilty by a competent court of law.
Thus the criminal justice system in
Malaysia provides various safeguards toprotect accused persons. A duty is imposedon the states, particularly the police force,to maintain law and order in the interestof the public. Investigation into an offence
resides with the police, and the duty to
decide whether a person ought to be
charged or not lies with the Attorney
General, who is a public prosecutor.
D. Hierarchy of The Courts andTheir Jurisdiction
The Federal Constitution of Malaysia
specifically provides for the rights of theindividual and to ensure that those rights
are upheld. It also provides an avenue for248

which those who suffered any grievancesor those who acted against the country’slaws, to seek redress or to be punished. The
courts for the administration of criminal
justice are provided for by the constitution
and other laws.
The highest in the hierarchy of thecourts is the Federal Court. It is the final
court of appeal. The court’s jurisdiction isappellate, supervisory and advisory. This
court consist of the Chief Justice and twoother judges of the High Court or a greater
uneven number as decided by the Chief
Justice. The Court of Appeal has appellate
jurisdiction to hear all appeals on questionof law or sentences from subordinate
courts. Three judges will sit in the courts
to make decisions on any appeal. The High
Court has jurisdiction to try all offenceswith the highest maximum sentence ofdeath and also has appellate jurisdiction
to hear appeals of cases from subordinate
courts.
The Sessions Court has jurisdiction to
try all offences except those with a possible
sentence of death. Normally one judge will
sit in the court to hear such cases.
The Magistrate Court is the lowest rungin the hierarchy of courts. It consists of
two categories of magistrates, i.e., FirstClass Magistrates and Second Class
Magistrates. First Class Magistrates arelegally qualified and have jurisdiction to
try all offences punishable withimprisonment of up to ten years or with afine and 12 strokes of whipping. However
their sentencing powers are limited to
impose imprisonment sentences of not
more than 6 years.
Lately because of the high backlog ofcases in the Sessions Court, the power of
the First Class Magistrate Court has been
increased to hear cases of robbery under
section 392 of the Penal Code andhousebreaking and theft under section 457
of the Penal Code, which are punishable
with imprisonment of not more than 14
years.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Second Class Magistrates are normally
public servants and junior court officials
experienced in judicial administration. The
sentencing in criminal cases is only limited
to imprisonment of not more than 12
months or a fine.
One interesting point to note is that, theFirst Class Magistrates also perform duties
in Juvenile Courts, to try youthful
offenders of the ages of 10 to 18 years. The
magistrate sits with two advisors hearing
all offences except those punishable withdeath. The court is being conducted in the
Magistrate Chambers, to the exclusion of
the public. The principle of this court is torehabilitate the youthful offenders,preventing their development as criminals.
PART II
A. Structure and Roles ofProsecution
The prosecution of criminal cases is themain domain of the public prosecutor. In
Malaysia, the person responsible for thisis the Attorney General. He holds office byvirtue of Article 145 of the Federal
Constitution of Malaysia. The powers
given to the Attorney General is containedin clause (3) of Article 145 which reads asfollows:
The Attorney General shall havepower, exerciseable at his discretion,
to institute, conduct or discontinue
any proceedings for an offence, otherthan proceedings before a Syariah
Court, a Native Court or a Court
Martial.
The law relating to criminal procedurein Malaysia is contained in the Criminal
Procedure Code (F.M.S. Cap. 6) (hereinafter
mentioned as CPC). The Code lays down
rules for such matters as the mode ofarrest; search of body, property or premises;
police investigation of a case; prosecutionof an accused person; and procedure fortrial and the court competent to try andpunish offences. In particular, according

to section 376 (I) of the CPC, the Attorney
General shall be the public prosecutor andshall have control and direction of all
criminal prosecutions and proceedings
under the Code.
The Attorney General is appointed by
the Yang Di Pertuan Agong on the adviceof the Prime Minister. Among the criteria
on his appointment, he must be a person
who is qualified to be a judge of the Federal
Court. Immediately under him is the
Solicitor General who also performs thesame function in the absence of the
Attorney General. Holding officers underthe Attorney General’s Chamber are the
Senior Federal Counsel, Federal Counsel
and Deputy Public Prosecutor. The
Attorney General oversees all criminal
prosecution in the country and in eachstate. There are Senior Federal Counsel
and Deputy Public Prosecutors who
perform this duty on the Attorney General’sbehalf.
The Public Prosecutor may appoint
deputies who shall be under his generalcontrol and direction. The Deputy Public
Prosecutor may exercise all or any of therights and powers vested in or exerciseable
by the Public Prosecutor. The power toinstitute criminal proceedings by the Public
Prosecutor includes the power to bringcriminal charges against persons.
The rights to appear before a court
proceeding accorded to the Public
Prosecutor is contained in sections 377 and380 of the CPC. Besides the Public
Prosecutor, the following persons are also
authorised to conduct prosecution in court:(1) a deputy public prosecutor,(2) an advocate authorised in writing by
the Public Prosecutor or a deputy
public prosecutor, and(3) a police officer not below the rank ofInspector.
The conduct of criminal proceedings inthe High Court is usually done by the
Public Prosecutor or his deputy. The casesthat go to the High Court are of a serious
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RESOURCE MATERIAL SERIES No. 53
nature and demand meticulous attention.
These are usually the cases that involved
the death penalty or acts against the
security of the country. Criminal trials in
the Sessions Courts are now being
conducted by deputy public prosecutors.
Formerly, it was done by the police.
Prosecution of criminal matters in the
Magistrate Courts are being done by thepolice. Besides the police, subsection (I),section 380 of the CPC allows any public
officer to prosecute in any court in any casein which he is by any written law
authorised to prosecute in such court. Thisrefers to Immigration Officers, Custom
Officers, Income Tax Officers and AntiCorruption Agency Officers who have been
given powers to prosecute cases coming
under their respective departments. For
instance, section 117 of the Customs Act
1967 provides that prosecution in respectof offences committed under the Act may
be conducted by a Senior Officer ofCustoms, and section 39(2) of the
Immigration Act 1959/63 states that every
Immigration Officer shall have authority
to appear in court and conduct prosecutionof offences relating to the Act.
Deputy public prosecutors are law
graduates either from local universities orfrom England. Before their appointment,
they received intensive in-service training
locally at the Judicial and Legal Institute.
Similarly with police prosecutors in thelower courts undergo basic/advanceprosecution courses at the Police College.
Furthermore, section 3(3) of the Police Act
1967 provides that one of the duties of thepolice force is to prosecute offenders incourt.
B. Professional Ethics ofProsecutors
Public prosecutors are part and parcelof the court officials. They are therefore
bound by the ethics of the legal profession
which are administered by the Law Society.
Due to the public nature of the prosecutors

250

duty, it is essential that their performance
be above reproach. Courses and seminars
are held frequently to train prosecutors on
this aspect. Proper conduct of prosecutors
in court is a norm and would greatly assist
the court in the smooth running of the court
proceedings. In this respect, mostprosecutors are well versed with the court
rules and procedure. Prosecutors have tobe ready to proceed with a trial on a given
date and would only request for
adjournment in very extenuating
circumstances.
C. Investigation of Criminal Cases
The criminal law defines criminal anddelinquent behaviour and specifies
sanctions which are enforced by a threatof punishment. In Malaysia, most of thepenal provisions are contained in the Penal
Code. The Code declares what acts oromission are offences and also provides for
its punishment. It specifies thecircumstances in which an act or omission
will be regarded as an offence. This
includes act or omission done intentionally,knowingly, voluntarily, fraudulently or
dishonestly. It classifies offences such as
those affecting the human body (e.g.,murder, causing hurt), affecting property(e.g., theft, robbery), affecting reputation(e.g., defamation, insult), affecting public
peace (e.g., unlawful assembly, rioting) andthose affecting public health and safety(e.g., adulteration of food). It also
determines the nature and quantum ofpunishment to be given for specific offences.
Beside the Penal Code, there are numerous
statutes which are either designed topunish specific offences such as theDangerous Drug Act 1952 or which seek toregulate specific activities and only punish
those who violate the rules (e.g., the Food
Act 1983). Some statutes provide forpreventive detention of persons without
trial in a court of law, and this is to prevent
them from engaging in any activity
prejudicial to peace, order and security. The

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Internal Security Act 1960 is one of thoselaws.
D. Law Enforcement Agencies
The sanctions imposed by the criminal
law are carried out by the law enforcement
agencies. The main body that does this is
the police apart from other government
agencies (e.g., Customs and Immigration
Departments, to name a few). The
functions of the police and other law
enforcement agencies are to carry out
investigation into any act or omission thati s c o n t r a r y t o l a w. T h e s e c a n b esummarised into three categories, namely:(1) the discovery that a crime has beencommitted,(2) the identification of the person/
persons suspected of committing theoffence, and(3) the collection of sufficient evidence toprosecute the suspect before thecourt.
The powers given to the police in respectof investigation are contained in the CPC
although the Police Act 1967 Part VII also
lists the duties and powers of police officers.
Section 107 of the CPC requires every
information relating to the commission ofa crime is to be reduced into writing if given
orally to the officer in charge of a police
station. This happens when a person comesto the police station and makes a report ofany incident. In legal term, this report isreferred to as the first information reportand its significance is that it is usually
made very early after the occurrence of acrime. Thus the likelihood of fabricationis small because the memory of theinformant is still fresh. This will form thebasis of the case and the police will swing
into action. Every such information shallbe entered in a book and kept in the police
station. It includes details such as the dateand hour when the information was given
and the signature of the person making thereport. A copy of this report is then given
to the police officers whose task is toinvestigate and they must be police officersof the rank of Sergeant or above or theofficer in charge of the police station. They
are called Investigation Officers or I.O.s.
E. Conduct of Investigation
In theory, as soon as the information isreceived, the investigating officer shallsend the first information report to the
public prosecutor. However, in practice thisis usually not done and the investigating
officer will normally straight away carryout the investigation. This includes themaking of enquiries on the spot and thevisit of the crime scene. The offender has
to be traced and arrested. There are four
categories of persons who may affect arrest,
namely, the police officer, the Penghulu, theprivate person and the magistrate. Section
23 of the CPC allows a police officer toarrest without a warrant for any seizableoffence committed anywhere in Malaysia.
A seizable offence is an offence in which a
police officer ordinarily arrests without awarrant according to the third column ofthe first schedule of the CPC. These areoffences punishable with death or offences
punishable with imprisonment for three
years and above. Offences punishable witha fine only are described as non-seizableoffences. The Penghulu may arrest without
a warrant for a seizable offence but section
25 of the CPC requires him to hand overthe person arrested to the nearest police
station or police officer who shall thenrearrest the person. A private person may
arrest as provided under section 27 of the
CPC, but the offence committed by a person
must be a seizable one and committed in
the view of the private person. Again the
person arrested must be handed over to thenearest police station or a police officer
without necessary delay. The mode ofarrest is provided in section 15 of the CPC.
Specifically, when a person is arrested, heshall actually be touched or his bodyconfined unless he submits to the custodyby word or action.

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When a person is arrested, his body may
be searched and all articles found be placedin safe custody. If these articles have any
connection with a crime committed, thenthey may be detained until his dischargeor acquittal. According to section 20 of the
CPC, only a police officer can conduct abody search with strict regard to decency.
The investigating officer can, when hereceived the first information report,
discontinue to investigate if he finds that
there is insufficient ground for proceeding
further in the matter. In other words, if hefinds that there is no offence disclosed in
the information, he can close the case.
When the investigating officer has
determined that a seizable offence has beencommitted, he can start the investigation.
He may by order in writing require theattendance of any person being acquainted
with the circumstances of the case to comeforward (section 111 of the CPC). If aperson refuses to do so, the investigating
officer may report such refusal to amagistrate who may then issue a warrant
to secure the attendance of the person.
Section 112 of the CPC provides for therecording of statements from witnesses by
the police. Any person giving a statement
to the police is bound to answer allquestions relating to the case in question.
He is legally bound to state the truth,
whether or not the statement is madewholly or partly in answer to questions.
This is because in the event that he is given
earlier to the police, then that statement
can be used to impeach his credit. He is
also liable to be charged for giving false
evidence in court.
F. Further Detention of Person
Arrested
From the progress and development of
the case, the investigating officer would
have collected evidence from the scene ofcrime and these would be seized as exhibitsof the case. If the suspect is known or is
identified, then effort would be made to252

trace and arrest him. Things that arecollected from the scene or from the victim
would be properly packed and sent to therelevant authority for analysis todetermine whether they have any
connection with the case. These areimportant because it would help to identify
the suspect. The investigating officers are
given powers to conduct search under
section 116 of the CPC for documents orother things necessary to the conduct of aninvestigation into any offence. Any person
arrested must be produced before amagistrate within twenty-four hours
inclusive of the time taken for the journey(section 28 of the CPC).
Article 5 of the Federal Constitution
provides for the personal liberty of a person
and in clause (4) of the same article, it also
states that a person arrested and notreleased must be brought before amagistrate without unreasonable delay
and cannot be detained for more thantwenty-four hours. Any longer detention
from that period has to be as ordered by
the magistrate. In this connection, section
117 of the CPC allows the police to detain
the arrested person for more than twentyfour hours and this extension of time has
to be applied to the court when the person
is produced before the magistrate.
Detention on the order of the magistrate
may not exceed a total of fifteen days, andthe magistrate has to record his reason for
granting the detention order. Normally,
during the application for the remand order
before the magistrate, the police would give
their reasons in support of the applicationof further detention of the person. This is
usually the case when they cannot
complete the investigation within twentyfour hours and are not ready to indict theperson arrested. Section 119 of the CPC
provides for the police investigation diaryand daily entries are made pertaining to
the action taken in the conduct of theinvestigation. This includes:

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS(1) the time at which the order forinvestigation reached the police
officer,(2) the time at which he began and closed
the investigation,(3) the place or places visited by him, and(4) a statement of the circumstances
ascertained through his investigation.
A copy of the police investigation diaryis submitted together with the grounds forfurther detention whenever an applicationi s m a d e u n d e r s e c t i o n 11 7 t o t h emagistrate. If any person arrested wishes
to make a statement, then a statement may
be taken from him under section 113 of the
CPC. This statement may amount to aconfession or may be exculpatory in nature.
It can either be oral or in writing. A caution
is required to be administered to a person
before he makes a statement in thefollowing words:
It is my duty to warn you that you are
not obliged to say anything or toanswer any question, but anything
you say, whether in answer to aquestion or not, may be given inevidence.
The statement has to be given to police
officer of the rank of Inspector or above.
G. The Role of Public Prosecutors inArresting and Detaining a
Suspect
The supervision of criminal investigation
is done by the police alone. The powers
are given to the police to conduct
investigation. The Attorney General has
no investigative powers, and he is not
involved in the process. The Criminal
Investigation Department of the police
force is the main body that conduct
investigation into criminal matters.
Supervision and direction of theinvestigation are controlled by theimmediate superior officer of theinvestigating officer.

H. Indictment
After the investigation is completed,section 120 of the CPC requires theinvestigating officer to forward to the
Public Prosecutor a report of theinvestigation. However in practice, not all
investigation papers are forwarded to the
public prosecutor. Where there is sufficientevidence and the investigation is completed
within twenty-four hours, the person will
be produced in court to answer the charge
by the police or after the expiry of thefurther detention period (section 117 of theCPC). However, the Public Prosecutor ina written directive does require
investigation papers to be forwarded to him
before the indictment is made. These areusually cases of a serious nature likeculpable homicide and those involving very
important people and government
servants. Some cases require the consent
of the Public Prosecutor before any formal
charges can be brought against any person.
For instance, offences committed under the
Immigration Act and the Prevention of
Corruption Act. The recorded statementsof witnesses, the suspect and theinvestigation diary of the investigating
officer form the basis on which it is decided
whether the suspect should be prosecutedin court. The police will prosecute the casesthat need not be referred to the Public
Prosecutor, but in all cases after thecompletion of the trial, the police must
report to the Public Prosecutor the resultof the cases. The Public Prosecutor may
decline to prosecute further at any stageof the trial but before judgement. The
police, however, cannot exercise thisdiscretion. The approval of the Public
Prosecutor has to be obtained first before
any proceeding can be discontinued.
Not all cases investigated by the police
end up with prosecution in court. The
Public Prosecutor will study the evidence
available in the investigation papers andonly those with a 50 percent chance ofconviction will be prosecuted. This entails

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RESOURCE MATERIAL SERIES No. 53
close co-operation between the Public
Prosecutor and the investigating officer,
and discussions are not uncommon
between them prior to the court trial.
I. Plea Bargaining
Plea bargaining is not widely practice in
Malaysia. In any case, it does not involvethe judge or the magistrate. Thus, in open
court, one does not see the accused person
plea bargaining with the judge ormagistrate. At the most, where an accused
person intended to plead guilty to a lesser
charge, this intention is conveyed to the
Attorney General or a deputy publicprosecutor. If this is accepted, the consent
to reduce the charge is given to theprosecutor. Usually, the accused’s counsel
will communicate directly with the
Attorney-General on the accused’s behalf
and make the proposition. The judge or
the magistrate would not know that a plea
bargain has taken place.
PART III
A. Trial Proceedings
Prior to the amendments to the CPC in
February 1995, there were four types oftrials conducted in the High Courts in
Malaysia. They were:(1) trials conducted by a judge sitting
alone, the procedure of which is laidout in Chapter XX of the CPC;
(2) trials by a judge with the aid ofassessors, the procedure of which waslaid out in Chapter XXI of the CPC;
(3) trials by a judge with a jury, theprocedure of which was provided in
Chapter XXII of the CPC; and(4) trials by a Judge sitting alone
according to the Essential (security
cases) Regulations 1975 (ESCAR).
Since 17 February 1995, trials by jury
and trials with the aid of assessors havebeen repealed. Trials that remain are those254

conducted by a judge sitting alone inaccordance with Chapter XX of the CPC
and in accordance with ESCAR. Trial
proceedings in Malaysia follow theadversarial system and are subject to twobasic principles:(1) an accused person is presumed
innocent until proven guilty; and(2) the prosecution must prove thecharge against an accused person
beyond reasonable doubt.
The prosecution will open its case firstby calling its witnesses. Each witness isthen cross-examined by the defence counsel
or the accused person personally if he is
not represented by a counsel. The
prosecution closes its case when all thewitnesses have given their evidence.
The judge or magistrate must decide
whether a prima facie case has been madeout. If the court is satisfied that a prima
facie case has been made out, the accused
will be called upon to enter his defence. If
the accused succeeds in his defence, he isentitled to an acquittal. If not, the court
will proceed to convict and pass sentence.
B. Cooperation for a Speedy Trial,
Securing an Appropriate
Sentence and Supervision overthe Fair Application of Law
For every type of offence, the law
prescribes a punishment which is either
imprisonment not exceeding a certain
period or a fine not exceeding a certain sum
or a combination of both. In respect ofserious offences, imprisonment is
mandatory, and in more serious types ofcrimes, a minimum sentence ofimprisonment or death is mandatory. An
appropriate sentence will be passed by the
court. Any sentence passed outside thelimits set or less than the minimum is asentence wrong in law and will be reversed,
set aside or altered by the Appellate Court.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
C. Execution of Punishments
The final disposal of the case is thepassing of the sentence on the accused
person. If the sentence consists of a fine,the accused person will be given time(usually until the later part of the day) to
pay the fine or seek assistance from close
relatives to settle the due. When an
accused person is unable to pay, he would
have to serve a default sentence in prison.
Where the sentence is one of imprisonment,a warrant of commitment will be issued by
the court to the prison authorities. The
accused will be escorted to the prison
designated and serve his sentence there.
Where the accused person intends toappeal against the sentence or conviction,
the court will usually grant a stay of
execution of the sentence pending theappeal. The accused person may bereleased on court bail or remanded inprison if the offence is of a serious nature.
D. Public Prosecutor’s Involvement
in National Criminal Justice
PolicyThe Attorney General is also responsible
for the drafting of laws to be enacted by
Parliament. Any new laws or amendments
to existing ones are drawn and drafted by
the Attorney General’s Chamber. Changes
in the laws are eminent when the country
progresses. For instance, with the advanceof information technology, new laws areneeded to protect the industries against
unscrupulous opportunists. These are newcrimes that demand new skill and in-depth
knowledge in combating them.

Law breakers have to be dealt with inaccordance with the law. Thus in any
society, there is some form of system inplace to tackle this problem. In Malaysia,
the justice system has been in place even
before independence in each of theindividual state, and when Malaysia wasformed, the justice system that was
adopted seemed to work well in preserving
the laws of the country.
BIBLIOGRAPHY
Publications
1. Criminal Procedure in Malaysia by Mini
Kamariah Majid.
2. Law of Evidence in Malaysia (AnOutline by Prof. M.R. Zafer.
3. Federal Constitution of Malaysia.
4. Criminal Procedure 1994 by Hamid
Ibrahim.
5. Law of Evidence by Hamid Ibrahim and
Maimunah Hamid.
Statutes
1. Criminal Procedure Code.
2. Penal Code.
3. Evidence Act 1950.
4. Subordinate Court Act 1948.

CONCLUSION
People are in general law-abiding, but it
is also true that everyone breaks the law
sometimes and some people break it often.
Compliance with the law is never complete.

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APPENDIX
COUNT ORGANIZATIONAL STRUCTURE

FEDERAL COURT

COURT OF APPEALHIGH COURT(MALAYA)HIGH COURT(BORNEO)SESSIONS COURTSESSIONS COURTMAGISTRATES’ COURTPENGHULU’S COURT256

NATIVE
COURTSMAGISTRATES’ COURT

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

THE ROLE AND FUNCTION OF PROSECUTION
IN CRIMINAL JUSTICE
Zafar Ahmad Farooqi*
I. TRACES OF CRIMINALPROCEDURE CODE AND
APPLICATION OF CRIMINALJUSTICE ADMINISTRATIONIn British India, the Governor General
had appointed the “Indian Law
Commission” to deal with substantive
criminal law and procedure of courts. The
Indian Law Commission after descending
and collecting various legislations, came up
with the Code of Criminal Procedure, 1898.
The Penal Code was prepared in 1837,
though it came into operation on 1st
January 1862. It was a nonpareilmonument of the Indian Law Commission.
In 1847, the said Commission was
instructed to prepare a Scheme of pleadingand procedures with forms of indictment
in 1848 in order with the provisions ofPenal Code. Later on, the draft on
Criminal Procedure was examined andrevised by the Commission, and was
adopted in 1854, which repealed the earlier
Act XXV of 1854 and the Amended Act VIII
of 1869 and gave birth to Criminal
Procedure Code of 1872 (Act X of 1872).
Like its predecessor, this Code did not apply
to certain courts and, therefore, wasdefective. The Presidency Magistrates Act(IV of 1877) was enacted to regulate theprocedure of courts of magistrates in the
Presidency-town. Several provisions ofthese three Acts—X of 1872, X of 1875 andIV of 1877 were similar though not coachedin the same language. So it was thought
advisable to consolidate the three Acts into
one single Code of Criminal Procedure for* Deputy Director Economic Crime Wing, Islamabad,Federal Investigation Agency, Pakistan.

the whole of British India, and Act X of 1882
was, therefore, passed repealing the earlier
said three Acts. The Code of Criminal
Procedure, 1882 remained in force forsixteen years and after its repeal, it was
replaced by the Code of Criminal
Procedure, 1898. In British India, theIndian Penal Code (XLV of 1860), the Codeof Criminal Procedure 1898 and the
Evidence Act 1872 (Act 1 of 1872) were inforce for prevention of offences. When
Pakistan came into being in 1947, theirnomenclature were changed as the
Pakistan Penal Code (XLV of 1860), theCode of Criminal Procedure, 1898 (V of1898) and the Evident Act, 1872 (1 of 1872)
to deal with the offenders.
2. The substantive criminal law relating
to Pakistan is contained in the Pakistan
Penal Code, which defines offences andprovides for punishment. Whilst the Codeof Criminal Procedure 1898 has been
framed to supplement the Penal Code byrules of procedures for preventing offences
and bringing offenders to justice. The two
hand in hand form the basis for criminal
law in Pakistan.
3. In 1979, certain Islamic laws wereintroduced which enforced certain Islamic
law i.e., (by repealing certain laws
contained in the Pakistan Penal code) (1)
The Offences Against Property(Enforcement of Hudood) Ordinance, 1979;(2) The Offences of Zina (Enforcement of
Hudood) Ordinance, 1979 (3); The Offencesof Qazi (Enforcement of Hadd) Ordinance,
1979; and (4) The Prohibition (Enforcementof Hadd) Order, 1979, which now deals withthe offences of theft, dacoity, robbery,

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RESOURCE MATERIAL SERIES No. 53
fornication/whoredom, slandering, false
accusations, importing/exporting/transporting/manufacturing of illegal
intoxicants, etc. Likewise, the Evidence Act
1872 (Act 1 of 1872) was repealed andreplaced with the Oanun-e-Shahadat
Order, 1984, which basically is the samebut more in conformity with Islamic laws.
One example is in Chapter XVI of the
Pakistan Penal Code relating to theoffences affecting the human body. Thiswas replaced with the Qisas and Diyat
Ordinance 1990 by virtue of which now theheirs of the deceased or the aggrieved canseek justice through payments as affirm of
settlement. Cases involving the death
penalty and transportation of life are taken
cognizance by the Courts of Sessions as
Hudood Courts at the district superior
level, while the cases involving punishment
up to seven years are within thecompetency of Judicial Magistrates.
II. SEPARATION OF
PROSECUTION AGENCY FROMPOLICE
4. It is pertinent to point out here that foradministering the criminal administrationof justice and a step for maintenance of the
judiciary, independent of the executive in
toto, the then President of Pakistan in
February, 1985, through a phased
programme, directed the amalgamation ofboth the aforesaid prosecution agencies,
one concerning the provincial police and theother concerning the provincial law
department, into one by separating the
Police Prosecution Agency from the Police.
The posts of Prosecuting Deputy
Superintendents (PDSP), Prosecuting
Inspectors (PIs) and Prosecuting SubInspectors (PSIs) of Police were abolished.
The PDSPs, who opted for Provincial Law
Department, were re-designated as Deputy
District Attorneys and both the PIs and
PSIs, who too opted as such, were made as
Assistant District Attorneys. The

258

Prosecuting Officers of Police PDSPs, PIs
and PSIs, who wished to remain in the
Police Department, not only ceased to beprosecutors, but their nomenclature wasalso changed to Inspectors (Legal). Hencethey could not conduct prosecution of
criminal cases on behalf of the State either
in the Sessions Courts or Magistrates’
Courts.
5. The entire prosecution (i.e., of theDistrict inferior level confirming present
level) rested with the District Attorneys,
who headed the District Prosecution
Agencies, and were purely the
representatives of the Provincial
Governments but not the Provincial Police.
Prosecution of criminal cases in the Courtsof Session is still conducted by the District
and Deputy District Attorneys, and theprosecution in Magistrates’ Courts,
inclusive of Judicial Magistrates, wasconducted by the Assistant District
Attorney (Previously Prosecuting
Inspectors and Prosecuting Sub-Inspectorsof Police). It may be recalled that prior to
February 1985, Rules 27.1 to 27.39,
Chapter XXVII of the Police Rules 1934,
dealt with prosecution and court duties
including the role of the investigation
officers and the prosecuting staff. As per
Rule 27.4, Chapter XXVII of the said Rules,
all the police officers, viz., allSuperintendents, and Assistant and
Deputy Superintendents of Police are, withreference to sections 270 and 492 of theCode of Criminal Procedure, ex-officio,
public prosecutors in respect of all cases
committed from their respective duties fortrial before the Sessions Courts. As per
Rule 27.4(2) of the said Rules, Prosecuting
Inspectors and Prosecuting Sub-Inspectorsof Police (redesignated as Inspectors Legalin 1985 under the Police and AssistantDistrict Attorneys under the Law
Department) were appointed. Additional
public prosecutors to conduct trial of casesin the Magistrates’ Courts including

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
magistrates having powers under section
30 of the Code of Criminal Procedure(Judicial), were also appointed.
III. DUTIES OF PROSECUTORS
6. Rule 27.15 of the Police Rules provides
the following duties for the head ofprosecuting agency (had been suitably
amended and incorporated in the Law
Department Manual):(1) Thoroughly to scrutinise challans andintermediate reference andapplications from police stations inconnection with the prosecution ofcases, the arrest of offenders, theconfiscation of bail or security cases
including security for keeping thepeace (vide Rule 23.32), should
receive as much attention from the
district prosecuting staff as ispracticable.
(2) To prosecute, watch or direct theprosecution of cases in the courts ofthe district. In this connection, it
must be realized that his duty
embraces not only the presentationof the prosecution case but contesting
the claims of the defence andensuring the observance of conditions
and restrictions imposed by the law
on the discretion of courts to passorders in certain circumstances, andthe observance of all High Court
orders issued with the object ofexpediting decisions and preventing
abuses.
(3) To supervise and distribute the workof prosecuting officers subordinate tohim and of the police personnel
attached to his office or to the courts.
(4) To take charge of, and deal with,articles and property received inconnection with cases, as well as of
unclaimed and suspicious property
received from police stations fororders of magistrates.

(5) To supervise the transmission of
warrants and summonses to the
executive police under the orders of
the criminal courts, and to see that
returns to such processes are madewithout delay.
(6) To keep the District Magistrate andthe Superintendent of Police
informed of all important matters inconnection with criminal cases undertrial, to bring to notice cases
requiring to be specially reported tohim, and to submit a daily diary inForm 27.15 (vi) of the Police Rules
showing cases sent for trial,convicted, discharged and pending incourt on that particular day. The
instructions of the High Court as tothe duties of the prosecuting agency
towards the District Magistrate arecontained in Appendix 27.15 (vi).
(7) To see that the instructions inconnection with the diet money andtravelling expenses of witnesses are
duly observed.
IV. EFFECTS OF SEPARATION OF
PROSECUTION AGENCY FROM
THE POLICE
7. By dint of the separation of the Police
Prosecuting Agency (comprising PDSP, PIs
and PSIs) and their amalgamation into theDistrict Prosecuting Agency headed byDistrict Attorneys, the Provincial Police
had suffered a severe set-back, whichfurther resulted in increasing the abnormal
acquittal rate and the worst law-and-ordersituation. Thus, the Provincial Police
departments had requested the Federal
Government to withdraw the earlier orderand repatriate the police prosecutors (PIsand PSIs) to conduct prosecution in the
Magistrates’ Courts, so that a maximum
number of convictions could be secured.
The reason being that by virtue of theseparation of Police Prosecuting Agencies
and their replacement under the Provincial

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RESOURCE MATERIAL SERIES No. 53
Law Departments, the conviction rate was
reduced and the acquittal rate increased(See Appendixes A-1 to C-2 regarding a,statement of crime by the Sindh Police).
As a result, the crime became unbridled
and could not be controlled in its true
perspective. Again, under the orders of theFederal Government, the prosecuting
officers (PIs and PSIs) who had worked
under the District Attorneys as ADAs, wereregistered to the Police Department to
conduct prosecution of criminal cases in the
Magistrates’ Courts with their redesignation as Inspectors/Legal. This
experiment has again ended in fiasco.
Another move is in progress to again place
the remaining prosecuting officers (PIS and
PSIs) under the Provincial Law
Departments. Because, as stated earlier,
the District Attorneys have now been
empowered to send up cases to the courtsof competent jurisdiction under section 173of the Code of Criminal Procedure, 1898.
V. ROLE OF PROSECUTION
DURING INVESTIGATION, TRIALSAND APPEALS
8. Prosecution plays an important role in
the administration of criminal justice.
Without successful prosecution, the desired
objects cannot be yielded. The role ofprosecutors not only commences soon after
registration of a case, but it also lasts up
to the final verdicts delivered by thecriminal court. The First Information
Report (F.I.R.), is the important documentthat sets the whole machinery of law into
motion. If it is founded on feeble footing, it
goes on to disturb the administration of
criminal justice, as it becomes a Herculean
task for the prosecutors to inject into a deadhorse. So while drafting an F.I.R, its prerequisites ought to have been incorporated
strictly in accordance with Code of
Criminal Procedure. The prosecution isrequired to be equipped with the latest
decisions of the superior courts for proper

260

legal guidance to the investigating officer,
who mostly banks upon the stereotype
mechanism and blinks towards the latest
guidelines given by the higher judicial
forums. While the prosecutor renders
valuable advice to the investigating officer
during the course of investigation, he also
removes the serious legal lacunas,
whereafter the case becomes the best one
possible to be presented in the court ofcompetent jurisdiction. After submissionof the challan, the role of the prosecutor isvery pivotal because he has to finalize thetrial after the prosecution witnesses are
examined and cross-examined by the
defence counsel and after he has crossexamined the defence witnesses adducedby the accused.
9. Sections 492 to 495 of the Code of
Criminal Procedure, 1898 deal with the
Public Prosecutors. Section 492 provides
powers to appoint Public Prosecutors, andsection 493 provides that the Public
Prosecutor may plead in all courts in cases
under his charge and pleaders privately
instructed to be under his direction.
Likewise, Chapter-29, Part-A of the High
Courts Rules and Orders Criminal revised
up to July 1996 to deal with theappointment of public prosecutors andtheir court duties, as envisaged in Chapter
XXXIX of the Code of Criminal Procedure,referred to above. It is a recognizedprocedure in the administration of criminal
justice that the courts take cognizance ofthe offences as incorporated in the police
challan, i.e., report under section 173 of theCode of Criminal Procedure and theinculpatory evidence (both oral anddocumentary) marshalled by theinvestigating agency. If the case is imbued
with the best piece of incriminating
evidence directly linking the culprits withthe commission of offences with which heis charged, the prosecutor can well present
the State case and promote the cause ofprosecution by bringing the offenders to107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
book. Whilst in case of technically defective
cases, the prosecutor and the court
conducting inquiry or trial cannot extract
punishment. The fact may not be lost sightof that although the prosecuting officers,viz., District, Deputy and Assistant District
Attorneys (under the Provincial Law
Departments), Deputy Superintendents of
Police/Legal and Inspectors/Legal (under
the Provincial Police), play a very pivotal
role in the administration of criminal
justice. Yet it is all the more astounding tonote that they are not sent for special
courses, training (not qualified lawyers,
counsels or limited legal training etc.) as
the officers of other departments are given
the privilege of. Prosecutors ought to begiven the chance to participate in all
courses relating to crime, which are either
conducted in Pakistan or abroad, so thatthey may get themselves out of thequagmire of deprivation and take keeninterest whole-heartedly.
VI. SEPARATION OF JUDICIARYFROM EXECUTIVE
10. Ever since Pakistan came into being
in 1947, the judiciary in Pakistan was notindependent of the executive in the real
sense of the term as envisaged in theConstitution of the Islamic Republic ofPakistan. It so lingered on, only one way
or the other, that the executive blamed the
judiciary for the increasing acquittal rate;
whereas the judiciary blamed the executive
creating a law-and-order situation andespecially the failure of the administrationof criminal justice, which the judiciary
could administer better than the executive.
Be that as it may, in 1996 the Chief Justiceof Pakistan, had directed the Federationof Pakistan and thus implemented thelong-drawn decision of separating the
judiciary from the executive in accordancewith the vires of the Constitution of Islamic
Republic of Pakistan 1973. Hence, thej u d i c i a r y, a n o r g a n o f p a r a m o u n tsignificance which plays a pivotal role in

the administration of criminal justice, has
now become quite independent of theexecutive. Results of this separation havemade substantial differences. Now the
Executive Magistrates have been placed
under the administrative control of District
Magistrate and the Judicial Magistrateunder the exclusive administration of theDistrict and Sessions Judge. The offences
falling under Chapters VIII, X, XIII and
XIV of the Pakistan Penal Code (Act XLVof 1860) shall be tried by the Executive
Magistrates, which consist of Magistratesof the First, Second and Third Class. The
Executive Magistrates are now empowered
to try cases in which only 3 years’
punishment can be awarded. On the other
hand, the Judicial Magistrates, who areunder the District and Sessions Judge, are
now Illaqa Magistrates and try thecriminal cases in which 7 years’
punishment can be awarded. The Sessions
Judge, who is subordinate to the High
Court, can award the death penalty. In
Hadood cases, the Sessions Court tries theoffences as the District Shariat Court andcan award life imprisonment and 40 stripes,
besides imposing “Hadd” penalty, i.e.,
amputation of limb, stoning to death, etc.
VII. PRINCIPLES OFPROSECUTION
11. For successful prosecution, prosecutors
ought to consider the following principles
enumerated hereunder:(1) Whether the provisions of the Codeof Criminal Procedure have been
violated. Is so, how to get thenecessary rectifications?
(2) If the F.I.R contains technical flaws,
how is the case put on straight lines
during investigation and trial,
whatever the case may be?
(3) Whether the investigation officer
conducted investigation properly as
per the law. If not, how can the casebe improved?

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RESOURCE MATERIAL SERIES No. 53(4) Is the oral, documentary andcircumstantial evidence in order withthe criteria laid down by the Qanune-Shahadat Order, 1984 (Revisions
the repealed Evidence Act, 1872)?
(5) Whether all facts reflected in the
F.I.R are commensurate with thechallan, i.e., Report under section 173of the Cr.P.C.? If not, how to plug theloopholes?
(6) Whether the challan has been
submitted in court within theprescribed period as laid down insection 173 of the Code of Criminal
Procedure?
(7) Whether the accused’s defence isplausible. If so, how to get him
discharged or acquitted by the court?
12. As regards the role of prosecutors in
the Provincial High Courts, the Agency of
Law Officers consists of the Advocate
General, Additional Advocates General andAssistant Advocate General. The
Provincial Advocate General heads theAddl: A.G. and A.A.G. They represent theState/Provincial Government not only incriminal matters, but also in civil matterswhere the interest of the Provincial
Government is involved, in the High
Courts. The Federation of Pakistan isrepresented by the Central Law Officers,
appointed by the President of Pakistan
under the Central Law Officers Ordinance,
1970, who are designated as Attorney
General, Additional Attorneys, or Deputy
Attorneys General Standing Counsel.
Besides the Provincial High Courts, theAttorney General, Deputy Attorneys
Generals and the Standing Counsel
represent the Federal of Pakistan in theApex Court, i.e., the Supreme Court ofPakistan not only in criminal matters, butalso in civil matters involving the interestof the federal government.
13. The above facts would denote that theprosecutors from the district inferior262

criminal courts up to the Supreme Courtof Pakistan play a pivotal role in theadministration of criminal justice. The
prosecutors/law officers representing theState in the High Courts and the Supreme
Court of Pakistan are well-paid and also
elevated to the High Courts as judges.
However, as for the prosecutors/law officers
representing the State in the Sessions
Courts and Magistrates’ Courts, they areneither well-paid, nor made judges in thesubordinate judiciary. As a result, they
having fallen prey to deprivation anddisappointment and most shun to takekeen interest in administering justice. If
given a chance to become a judge in thesubordinate judiciary, they would definitely
represent the State tooth-and-nail and also
help expedite the quick dispensation ofjustice in the administration of criminal
justice.
14. In regards to the role and duties ofprosecuting officers or public prosecutors
as to the investigation of cases relating to
the District superior and District inferior
criminal courts in the administration of
criminal justice, they not only impart legal
guidance to the investigating officer during
investigation up to the submission of thechallans for promoting the cause ofprosecution, but they also represent theState in courts during bail petitions andthe trials of offenders.
15. The role of law officers attached with
the High Courts (Advocate General, Add.
Advocate General and Assistant Advocate
General) and the ones attached with theSupreme Court (Attorney General, Add./
Deputy Attorney General and StandingCounsel) is quite different from the publicprosecutors, as discussed in the above para.
They present the cases alreadyinvestigated by the provincial level andFederal Investigation Agency at the federal
level respectively.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
16. Sometimes, the Law and JusticeDivision of the Government of Pakistan
appoints/nominates Special Public
Prosecutors from amongst some eminent
lawyers to conduct the trial of criminalcases which involve public importance andheinousness of crimes. These Special
Public Prosecutors represent the State incases investigated by the investigation
agency under the legal guidance of publicprosecutors.
VIII. STRUCTURE OF THE COURTS
17. The Supreme Court of Pakistan isheaded by the Chief Justice (also known
as the Chief Justice of Pakistan) andconsists of twelve judges; whereas the
sanctioned strength of the judges of theapex court is fourteen. Of the twelve
Judges, two deal with the appeals
pertaining to the Federal Shariat Court(Supreme Court Appellate Jurisdiction).
The State is represented by the Attorney
General, Deputy Attorneys General andthe Standing Counsel in both in criminaland civil matters, involving the interest ofFederal Government of Pakistan.
18. Besides, there are Provincial High
Courts set up at the Punjab, Sindh,
Baluchistan and NWFP Provinces. The
Punjab Court is called as the Lahore High
Court with its benches at Rawalpindi,
Multan and Bahawalpur. The Provincial
seat is at Lahore. The State is represented
by the Advocate General, as well as
Additional and Assistant Advocates
General. Likewise in the other provincial
High Courts and Karachi (Sindh) andP e s h a w a r ( N . W. F. P ) , t h e S t a t e i s
represented by the Advocate General, as
well as Additional and Assistant Advocates
General both in criminal/civil matters,
involving the interest of the provinces.
19. Besides the High Courts, there are twoclasses of criminal courts, i.e., the District

superior criminal (which include theSessions Courts as enshrined in section 6)
and the District inferior criminal courts,
which include the Magistrates’ Courts (asprovided by section 6). The prosecution
agencies run parallel to conduct theprosecution of criminal case in the district
superior and district inferior criminal
courts. At the district superior level,
prosecution is conducted by the District,
Deputy and Assistant District Attorneys,
who are under the Provincial Law
Departments and are the representativesof the provincial government. The
prosecution of Magistrates’ Courts is
conducted by the Inspectors/Legal(previously Prosecuting Inspectors andProsecuting Sub-Inspectors), who areunder the Provincial Police. Section 173of the Code of Criminal Procedure 1989 has
now been amended and the District
Attorneys, who conduct prosecution in the
Session Courts, have been empowered tosend up challans to criminals courts,
whereas prior to February 1985 in termsof Rule 27.15 of the Police Rules, 1934, it
was the job of the head of Police
Prosecuting agency whether he be of therank of Deputy Superintendent of Police
or Inspector. However, the post was
abolished and redesignated as Deputy
Superintent of Police/Legal w.e.f. February,
1985. As regards civil matters relating to
the Provincial governments, the same areconducted by the District, Deputy andAssistant District Attorneys in the civil
court, which include the Courts of Civil
Judge and District Session Judges.
IX. INVESTIGATION
20. Chapter XXV of the Police Rules 1934
and Chapter XIV of the Criminal Procedure
Code deal with the investigation procedure,
powers, arrest and submission of a report
before the court by the investigating officer.
The police is basically responsible for theinvestigation of criminal cases. In

263

RESOURCE MATERIAL SERIES No. 53
Pakistan, the maintenance of law and orderis the basic responsibility of the provincial
governments, and the police is under theprovincial government. The Head of thepolice in a province is the Inspector Generalof Police, and the police work is divided into
Ranges and Districts. A district is further
divided into police stations, and is where
the investigation of criminal cases are
conducted. The incharge of the police
station is known as the Station House
Officer, with whom some investigating
officers are posted in different ranks. The
supervision of investigation is being
conducted by a sub-divisional police officer
and by the district incharge of police, who
is known as the Superintendent of Police.
21. The officer in charge of a Police Station
is empowered by section 156 of the
Criminal Procedure Code to investigate
any offence which occurs within the limitof his jurisdiction. He is also empowered
to depute his subordinate officers toinvestigate cases as well as to takemeasures for the discovery and arrest ofoffenders. He is empowered under section
156(1) of the Criminal Procedure Code.
22. When the police receives any
information regarding a cognizable offence,the police is bound to register an
information report under section 54 of the
Cr.P.C. When an F.I.R. is registered, themachinery of law is set into motion. The
police is bound to complete investigation
without unnecessary delay and as soon as
it is completed, a report under section 173of the Cr.P.C., thereof, has to be submitted
to the court of competent jurisdiction. The
powers and privileges for investigation are
derived from sections 154 to 175 of the
Criminal Procedure Code. These sections
deal with the powers to investigate andarrest an accused, search and seize
property involved in crime, and finally thesubmission of a challan under section 173of the Cr.P.C. The investigating officer is

264

supposed to issue day-to-day case diary
about the investigation and incorporate all
action taken in respect of investigation
under section 172 of the Cr.P.C. It is theduty of an investigating officer to find out
the truth of the matter under investigation.
23. During investigation, the investigating
officer tries his best to collect evidence, i.e.,
direct, oral, documentary andcircumstantial evidence which could
directly link the accused with thecommission of the charge, which hecommitted. The investigating officer shallalso take assistance from the technicalexperts for their expert evidence in fingerprints, hand writing, chemicals, explosives
and medicine under Article 59 of the
Qanoon-e-Shahadat 1984 (previously
section 45 of the Evidence Act, 1972). The
opinion of experts/third persons are
relevant under Articles 59 to 65 of Qanoone-Shahadat 1984. Also the investigating
officer can produce modern devices ortechnology (which include audio-video, etc.)
under Article 164 of Qanoon-e-Shahadat
1984.
24. In 1974, at the federal-level, an agency
known as the Federal Investigation Agency,
came into existence for the investigationof matters related to bribery; corruption of
the federal government and private sector
corporations; the detection of such offencesbank fraud, currency racketeering,violation of the Passport Act and the
Immigration Ordinance; and the crime of
economic evasion.
25. In order to prosecute public orgovernment servants, two agencies were
set up, viz., the Federal Investigation
Agency (FIA) and the Anti-Corruption
Establishment (ACE). The FIA wasconstituted in 1974 under the FIA Act, 1974
(VIII of 1975) for the investigation ofcertain offences committed in connection
with matters concerning the federal

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
government and for matters connected
therewith. The ACE, at the provincial level,
deals with matters pertaining to provincial
subjects. As many as 37 local and special
laws and 131 sections of the Pakistan Penal
Code are on the schedule of the FIA.
Besides dealing with the white collar crime,it also deals with the cases of immigration
and anti-smuggling. As regards theprosecution of cases in FIA, the same isconducted by the legal officers (Inspectors/
Legal, Assistant Directors/Legal and
Deputy Director/Legal) who are also
designated as Special Public Prosecutors
in this regard. While the prosecution in
ACE is conducted by the legal officers(Class-I Gazetted Status) borrowed fromthe provincial police.
X. INDICTMENT AND TRIALPROCEEDINGS
26. When the Police Investigation Agency
submits a challan, i.e., report under section
173 of the Cr.P.C. before the competentcourt, such court conducts an inquiry ortrial under Chapter XV (sections 177 to186) of the Cr.P.C. Further Chapter XIX(sections 221 to 240) of the Cr.P.C. empower
the criminal courts to indict the accused inaccordance with the available inculpatory
evidence.
27. Chapter XIV (sections 177 to 199-B) of
the Cr.P.C. deals with the jurisdiction of
the criminal courts in inquiries and trial.
As regards the examination of witnesses,
Chapter X (Articles 130 to 161) of the
Qanoon-e-Shahadat, 1984 deals with theprocedure regarding the examination-inchief and the cross-examination of
witnesses.
28. After submission of the final report(challan) by the police as per section 173 of
the Cr.P.C., the trial court issues a charge
sheet to the accused according to theoffence which he committed and wasproved during police investigation. The
charge shall contain such particulars as thetime and place of the alleged offence andthe person against whom, as the thing inrespect of which, it was committed, as arereasonably sufficient to give the accused
notice of the matter with which he ischarged. The charge shall also containparticulars of the manner in which thealleged offence was committed.
29. Before trial proceedings start, allstatements recorded by the police as per
section 161 of the Cr.P.C. and confessional
statements under section 164 of the Cr.P.C.
recorded during police investigation areprovided to the accused. If the accused
pleads guilty, the court may punish him,
and if he denies the charges, the court shallstart regular proceedings. During trial, thecourt summons all the prosecution
witnesses and records their statements.
Afterwards the defence of the accusedstarts. The prosecutor and defence counsel
can argue and examine all the evidence.
The prosecutor also examines the accused.
After completion of the proceedings, i.e.,
examination of the witnesses and accused,
when the court feels that all relevant points
are discussed, it will pronounce thejudgement. It can convict or acquit theaccused.
30. During trial, if the police finds
additional evidence which can further
strengthens its prosecution, it can submit
an additional charge report under section
173 of the Cr.P.C. It should be submitted
before the judgement of the case.
XI. PROPOSALS AND
RECOMMENDATIONS
31. No system is perfect in the world as tocriminal justice administration and the roleof prosecution can always be improved:

265

RESOURCE MATERIAL SERIES No. 53(1) An independent prosecution service
may be set up, which is
independently funded with qualified
lawyers. The lawyers would be able
to give advice/opinion to the policeand various agencies, as well as
determine whether prosecution cantake place. If they feel there can be
no case, then they should offer an
opinion which may be implemented
by the various agencies.
(2) The agencies would thus serve topromote a sense of impartiality andfairness, and in the event of a casefor prosecution, the lawyers would
represent the agencies.
(3) This service would take a heavy load
off the agencies, leaving them toinvestigate and do their duties
without worrying about completingthe cases.
(4) Private prosecutions should be
encouraged for some offenses suchas shop lifting or common assault.
(5) Individuals and public bodies should
perform their own prosecutions. At
the present moment, cases of the
Nationalized State Bank arereferred to the FIA, which thenprosecutes. However, these bodies
should instruct their own lawyers toprosecute in court.
(6) Once a criminal is convicted, thelegal costs involved should berecovered from the criminal from his
assets, his properties, etc. even his
family.
(7) P l e a b a r g a i n i n g s h o u l d b e
encouraged so as to enable othercrime to be detected.
(8) The media should be used to enablepublic awareness of criminal
activities, and information must be
encouraged from the public-at large.

266(9) The prosecution of cases should not
be detailed in media. Moveover,prosecution lawyers and the judge
should not be mentioned in press
reports.
(10) Taps and video should be admissible
as evidence.
(11) A watch-dog body may also be setup, independently funded andcomprising lawyers, journalists andacademics, who would ensure thatprosecution cases and justice arefollowed.
(12) A special reference to human rights
must be made to ensure thatprosecution is conducted inconformity with international
treaties as to, for example, torture.
(13) A j u r y s y s t e m m a y a l s o b e
introduced, although expensive, toensure a fairer system for justice.
(14) Law officers at the provincial levelshould be able to become court
judges. This would enable law
officers to pursue their careers morezealously.
(15) Modern equipment and resources
should be made available toprosecutors.
(16) Review has to be made of the
Pakistan Penal Code and the
Criminal Code of Procedure. They
are outdated and old.
(17) More prosecution is needed.
(18) General conditions for prosecuters
should be improved, e.g., more salaryand better equipment.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
APPENDIX A-1
TOTAL CRIME POSITION IN THE COURTSSINDH POLICE
YEAR
85
86
87
88
89
90
STATUS
No. of pending previous years 74044 78384 81938 92310 103275 112615
No. of cases reported
48125 51267 49257 48648 58736 53995
Total cases for investigation 122169 129652 136197 140978 162011 166610
Send up to court
39634 40750 41877 34520 47449 41460
Conviction
25025 26028 23795 16705 25123 16046
%
63.14
63.87
56.82
48.38
52.94
38.70
Acquitted
8731
8384
9357
9339 10865 14315
%
22.02
20.57
22.34
27.05
22.89
34.52
Pending court
5878
6338
8725
8485
11361
11099
Pending police
78384 86938 92340 104258 112522 122761

APPENDIX A-2
TOTAL CRIME POSITION IN THE COURTSSINDH POLICEYEAR
STATUS
No. of pending previous years
No. of cases reported
Total cases for investigation
Send up to court
Conviction%
Acquitted%
Pending court
Pending police

91

92

93

94

95

115719 127159 122437 134158 138453
43958 40179 41930 44628 50216
159677 1673382 164367 178987 188669
7205 28549 33522 38733 45965
12601
7633 13731 14280 23391
33.87
26.74
40.96
36.86
50.88
10785
9251 10543 12360 12380
28.99
32.40
31.45
31.90
26.93
13839
11665
9248 38733 10194
19947 136595 128747 137435 138040

267

RESOURCE MATERIAL SERIES No. 53
APPENDIX B-1
OFFENCES AGAINST PERSONSSINDH POLICE(Murder, Hurt, Kidnapping, Rape, and Negligent Act, Etc.)
YEAR
STATUS
Total cases handled by police
Sent up in the court
Convicted
Acquitted
Pending court

85

86

87

88

89

90

37212
6665
2178
3583
904

38575
6189
1906
3376
907

41061
6592
1647
3702
1243

43821
6760
1680
3856
1176

46989
7369
1872
4116
1381

49762
7174
1166
4039
1505

APPENDIX B-2
OFFENCES AGAINST PERSONSSINDH POLICE(Murder, Hurt, Kidnapping, Rape, and Negligent Act, Etc.)
YEAR
STATUS
Total cases handled by Police
Sent up in the Court
Convicted
Acquitted
Pending Court

268

91

92

93

94

95

49200
7261
1453
3968
1840

49489
5698
1148
3110
1440

47929
6675
1761
3620
1294

51330
7305
1738
3975
1592

53145
8734
2852
4340
1542

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
APPENDIX C-1
OFFENCES AGAINST PROPERTYSINDH POLICE(Dacoity, Robbery, Trespass, and Theft)
YEAR
STATUS
Total cases handled by Police
Sent up in the Court
Convicted
Acquitted
Pending Court

85

86

87

88

89

90

11961
3229
750
788
1691

12403
2811
567
605
1639

13502
3443
552
724
2167

14131
3211
520
760
1933

20320
4105
651
1274
2180

16906
3602
370
790
2211

APPENDIX C-2
OFFENCES AGAINST PROPERTYSINDH POLICE(Dacoity, Robbery, Trespass, and Theft)
YEAR
STATUS
Total cases handled by Police
Sent up in the Court
Convicted
Acquitted
Pending Court

91

92

93

94

95

15710
3167
391
874
1922

15863
2690
372
6689
1749

17428
3437
474
966
1999

18381
3731
533
1216
1982

19494
4671
1879
1091
1701

APPENDIX D
THE COURTS IN PAKISTANATTORNEY/PROSECUTORSFEDERAL LEVELPROVINCIAL
LEVEL
General/Government

CRIMINAL JUSTICE
COURT
Supreme Court of Pakistan(Highest Appellate Court)

Attorney General/Deputy
Attorney General

Federal Shariat Court
Provincial High Court(Appellate/Writ Jurisdiction)

Advocate General/
Additional Advocate
Pleaders/Solicitors

Sessions Courts

DISTRICT LEVELGOVERNMENTDistrict Magistrates’ Courts

District Attorney/Deputies
Prosecutors/AssistantDistrict
Attorneys

Special Courts

Prosecutors
269

RESOURCE MATERIAL SERIES No. 53
APPENDIX FPRINCIPLES OF PROSECUTION
1. To rectify the Code of Criminal Procedure, if violated.
2. To remove the technical flaws in the First Information Report (F.I.R).
3. To improve defects in investigation.
4. To gather oral, documentary and circumstantial evidence according to Qanun-eShahadat (Evidence Act).
5. To remove/plug the loopholes between F.I.R. and the final report.
6. To submit the final report in the court according to the G.P.C.
7. To identify any legal problem precluding successful prosecution like missing witnesses,
double jeopardy, and wrong involvement by police.
8. To take into account the accused’s right of defence.
9. To be aware of public agitation for the wrong involvement by police.

APPENDIX GLAWS REGARDING PROSECUTION
1. Criminal Procedure Code.
2. Police Rules 1934.
3. Qanun-e-Shahadat Order, 1984 (Previously Evidence Act, 1872).
4. High Courts Rules and Orders Criminal Practice.

APPENDIX H
COURT WORK 1990-94 OF THE FIA, PAKISTANYEARSTATUS
Cases pending in the Courts at
the end of the year
Challenged
Total
No. of Cases Decided
Convicted
Acquitted

270

1990

1992

1993

1994

1995

4224

4220

4142

3669

3554

1808
6032
1812
1254
158

2322
6542
2400
1315
574

1798
5940
2271
1244
503

1454
5123
1523
866
194

1149
4703
945
509
212

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
APPENDIX I
DUTIES OF PUBLIC PROSECUTORS
1. To promote the cause of prosecution.
2. To thoroughly scrutinize challans, i.e., Reports under section 173 of the Cr.P.C.
including applications received from the police station in connection with the arrestof offenders [Police Rules, 27. 15(1)].
3. To prosecute, watch or direct the prosecution of cases in courts.
4. To ensure the observance of conditions and restrictions of courts [Police Rules, 27.
15(ii)].
5. To ensure the observance of all High Courts orders issued with the object of expediting
decisions and preventing abuses.
6. To supervise the transmission of warrants and summons to the executive police
under the orders of criminal courts and to see that returns to such processes are
made without delay.
7. To guide the investigating officer to remove the legal lacunae during investigation,
so that best evidence is presented in court.
8. To examine whether the challan has been put in court within the prescribed period,as laid down in section 175 of the Cr.P.C.
9. As soon as final report of investigation under section 173 of the Cr.P.C. is received
from police, it is the duty of the public prosecutor to vet it minutely and, if found fit,
he should immediately send up the same to the court and, if found not fit due toserious legal lacunae, he may withhold the same directing the investigating agency
to re-submit it in the best manner.
10. To file revision petition under sections 439 and 439-A of the Cr.P.C., provided the
impugned orders merits revision.
11. To prepare acquittal appeal under section 417 of the Cr.P.C.
12. To cross-examine necessarily the accused according to Article 44 of Qanun-e-Shahadat
Order, 1984 (Evidence Act). It was not previously done so.
13. According to section 232 of the Cr.P.C., whenever a charge is altered or added by the
court after the commencement of trial, the public prosecutor is empowered to recall
or summon and examine the witness with reference to such alteration or addition.
14. According to section 265 of the Acr.P.C., in every trial before a Court of Sessions, theprosecution shall be conducted by a public prosecutor.
15. As per section 494 of the Cr. P.C., the public prosecutor may, with the consent of thecourt before the judgement is pronounced, withdraw from the prosecution any person
tried for the offence(s).

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RESOURCE MATERIAL SERIES No. 53

THE ROLE AND FUNCTION OF THE PROSECUTION IN THE
PHILIPPINE CRIMINAL JUSTICE SYSTEM
Menrado Valle-Corpuz*
INTRODUCTION
The criminal justice system, essentially,is the system or process in the community
by which crimes are investigated, and thepersons suspected thereof are taken into
custody, prosecuted in court and punished,if found guilty, provisions being made for
their correction and rehabilitation.
Prior to the advent of American
sovereignty in the country, we had the
Spanish law on criminal procedure. The
Royal Decree of September 4, 1884, byvirtue of which the Penal Code in force inthe archipelago, as amended in accordancewith the recommendations of the CodeCommittee, and its accompanying law—
the Provisional Law on Criminal
Procedure—were published and applied in
the Philippines pursuant to the Royal
Decree of December 17, 1884. It became
effective four months after its publicationin the Gaceta de Manila. In addition, thecompilation of the Laws of Criminal
Procedure of 1879 and the Law of Criminal
Procedure of 1882 also formed part of ourlaw on the subject.
During the American occupation,
General Otis issued General Orders No. 58
on April 23, 1990, which was amended atvarious times. Some of the amendments
were: Act No. 194, providing forpreliminary investigations; Act No. 440,
relating to counsels de officio; Act No. 590,
providing for preliminary investigations by
Justices of the Peace of provincial capitals;
Act No. 2677, prescribing the procedure ofappeals of cases originating in the Justice* State Prosecutor II, National Prosecution Service,
Department of Justice, Philippines.

272

of the Peace Courts to the Supreme Court;
Act No. 2709, regarding the exclusion ofan accused to be utilized as a government
witness; and Act No. 2886, changing thename of the party who should prosecutethe criminal action from that of “TheUnited States” to “The People of thePhilippines.”
The Philippine criminal justice system
is composed of five parts or pillars, namely,
law enforcement, prosecution, judiciary,
penology, and the community.
I. LAW ENFORCEMENT PROCESSThe law enforcement consists of theofficers and men of the Philippine National
Police (PNP), the National Bureau of
Investigation (NBI), and other agencies.
When they learn of the commission ofcrimes or discover them, their duty is to:a. Investigate the crime which may takethe form of surveillance and observationof suspects, other persons and premises;
interviewing persons with knowledge offacts directly or indirectly connected withthe offense; taking photographs(surreptitiously or otherwise); arranging
for entrapment; searching premises andpersons subject to constitutional andstatutory safeguards; and examining public
and other available records pertaining to
the persons involved and getting copies of
pertinent entries.
The police officers, in other words, collectevidence for use in the prosecution of thesuspects in the court. This may consist of
the testimony of witnesses, including
invited suspects, which are invariably
taken down in question-and-answer form;

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
writings and objects, e.g., gun, knife, otherweapons used in the commission of thecrime, clothing of the victim, etc.
b. Arrest suspects by virtue of a warrantof arrest issued by a judge on the basis ofevidence submitted by them or undercircumstances justifying a warrantees
arrest.
The instances when an arrest without
warrant may be lawfully effected by a peace
officer or a private person are as follows:(1) When in his presence, the person to
be arrested has committed, isactually committing or is attempting
to commit an offense;(2) When an offense has in fact just beencommitted, and he has personal
knowledge of facts indicating that theperson to be arrested has committed
it; and(3) When the person to be arrested is a
prisoner who has escaped from apenal establishment or place where
he is serving final judgment or
temporarily confined while his casein pending or has escaped while beingtransferred from one confinement toanother.
Any person who—while in custody orotherwise deprived of liberty—is underinvestigation for the commission of an
offense, has the following constitutionalrights, among others:
1) He must be informed of his right toremain silent and to have competentand independent counsel preferablyof his own choice. If the person
cannot afford the services of counsel,
he must be provided with one. Theserights cannot be waived except inwriting and in the presence ofcounsel;2) No torture, force, violence, threat,indimidation or any other means
which vitiate the free will shall be
used against him; secret detention

places, solitary, in communicado orother similar forms of detention areprohibited; and
3) Any confession or admission obtainedin violation of the foregoing shall beinadmissible in evidence against him.
c. Refer the case and the suspects to
the Office of the Public Prosecutor or
Municipal Trial Court for preliminary
investigation or directly to the Municipal
Trial Court for trial and judgment.
II. PROSECUTION PROCESSThe investigation and prosecution of allcases involving violations of penal laws arelodged with the Department of Justice(DOJ) through its National Prosecution
Service (NAPROSS).
The DOJ is headed by the Secretary ofJustice with three Undersecretaries
assisting him.
Aside from being the prosecution arm of
the government, the DOJ shall have thefollowing powers and functions:a. Act as principal law agency of thegovernment and as legal counsel andrepresentative thereof, whenever sorequired;b. Administer the probation andcorrection system;c. Extend free legal assistance/
representation to indigents and poor
litigants in criminal cases and noncommercial civil disputes;
d. Preserve the integrity of land titles
through proper registration;e. Investigate and arbitrate untitledland disputes involving small landowners
and members of indigenous culturalcommunities;

273

RESOURCE MATERIAL SERIES No. 53
f. Provide immigration andnaturalization regulatory services andimplement the laws governing citizenshipand the admission and stay of aliens;g. Provide legal services to the national
government and its functionaries,
including government owned or controlled
corporations and their subsidiaries; andh. Perform such other function as may
be provided by law. It consists of thefollowing constituent units:(1) Department proper;(2) Office of the Government Counsel;(3) National Bureau of Investigation;(4) Public Attorney’s Office;(5) Board of Pardons and Parole;(6) Parole and Probation Administration;(7) Bureau of Corrections;(8) Land Registration Authority;(9) Bureau of Immigration; and(10) Commission on the Settlement ofLand Problems.
The NAPROSS is with the “Department
Proper” which is under the control andsupervision of the Secretary of Justice. It
is composed of the Prosecution Staff in the
Office of the Secretary of Justice headedby the Chief State Prosecutor, the Regional
State Prosecution Offices headed by
Regional State Prosecutors, and theProvincial and City Prosecution Offices
headed by the Provincial Prosecutor andCity Prosecutor, respectively.
The Prosecution Staff or State
Prosecutors perform the following
functions:a. Investigate administrative charges
against prosecutors and other prosecution
officers;b. Conduct the investigation andprosecution of all crimes;

274

c. Prepare legal opinions on queries
involving violations of the Revised Penal
Code and special penal laws; andd. Review appeals from the resolutionsof prosecutors and other prosecuting
officers in connection with criminal cases
handled by them.
Regional State Prosecutors have thefollowing functions:(1) Implement policies, plans, programs,
memoranda, orders, circulars andrules and regulations of the DOJ
relative to the investigation andprosecution of criminal cases in his
region;(2) Exercise immediate administrative
supervision over all Provincial andCity Prosecutors and otherprosecuting officers of provinces andcities comprised within his region;(3) Prosecute any case arising within theregion.
Provincial and City Prosecutors have thefollowing functions:a. Be the law officer of the province or
city, as the case may be. He shall havecharge of the prosecution of all crimes,
misdemeanors and violations of city ormunicipal ordinances in the courts of suchprovince or city and shall therein discharge
all the duties incident to the institution of
criminal prosecutions;b. Investigate and/or cause to beinvestigated all charges of crimes,
misdemeanors and violations of all penal
laws and ordinances within their respective
jurisdictions and have the necessary
information or complaint prepared or madeagainst the persons accused. In the
conduct of such investigations, he or his
assistants shall receive the sworn
statements or take oral evidence of
witnesses summoned by subpoena for the
purpose;107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
c. Investigate commissions of criminal
acts and take an active part in thegathering of relevant evidence. For thispurpose, the National Bureau of
Investigation, Philippine National Policeand other offices and agencies of thegovernment shall extend to him thenecessary assistance;d. Act as legal adviser of themunicipality, and municipal district of theprovinces or the provincial or city
government and its officers or of the city.
As such, he shall, when so requested,submit his opinion in writing upon any
legal question submitted to him by any
such officer or body pertinent to the duties
thereof; ande. Assist the Solicitor General, when so
deputized in the public interest, in theperformance of any function or in the
discharge of any duty incumbent upon thelatter, within the territorial jurisdiction of
the former, in which cases, he shall be
under the control and supervision of the
Solicitor General with regard to the
conduct of the proceedings assigned to him
and render reports thereon.
The members of the NAPROSS are
selected from among qualified andprofessional trained members of the legal
profession who are of proven integrity andcompetence and have been in the actual
practice of the legal profession for at least
five years prior to their appointment or
have held during like period, any position
requiring the qualifications of a lawyer.
They shall be appointed by the Presidentof the Philippines upon recommendationof the Secretary of Justice.
Once appointed, prosecutors are
required to attend seminars, lectures,convention and continuing legal education
to enhance their skills in investigation andtrial works.

They enjoy a security of tenure because
they can be removed from office only for a
cause. Their appointments are notcoterminous with the appointing authority,
which means that even if the President who
appointed them is no longer in power, theyshall still remain in office.
In the discharge of their duties,
prosecutors are guided by their “Credo” andthe constitutional mandate that “a public
office is a public trust and public officers
and employees must at all times
accountable to the people, serve them withutmost responsibility, integrity, loyalty andefficiency, act with patriotism and justiceand lead modest lives.”
The prosecution process starts themoment the law enforcer, the complainantor public officer in charge of theenforcement of the law alleged to have been
violated files a case against a suspectedcriminal. With such filing, preliminary
investigation will set in and the second
stage in the life of a criminal action is now
in progress. The first stage is the police
investigation.
Preliminary investigation is the stage at
which the public prosecutor evaluates thefinding of the police or the evidence
submitted directly by a complainant or
public officer in charge of the enforcementof the law alleged to have been violated, todetermine if prosecution of the suspect incourt is warranted. The Rules of Court
define preliminary investigation as an
inquiry on proceeding for the purpose ofdetermining whether there is sufficientground to engender a well founded belief
that a crime cognizable by the Regional
Trial Court has been committed and that
respondent is probably guilty thereof, andshould be held for trial.
A preliminary investigation is an
important substantive right of persons
suspected of crimes, the deprivation ofwhich is tantamount to a deprivation of due
process of law. It is designed against hasty
and malicious prosecutions.

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RESOURCE MATERIAL SERIES No. 53
Preliminary investigations may be
conducted by the public prosecutors or
judges of the Municipal Circuit Trial
Courts.
The procedures in the conduct of apreliminary investigation are as follows:(1) Filing of complaint and affidavits of
witnesses by the police, complainantor public officer in charge of theenforcement of the law alleged tohave been violated;(2) Personal examination of affiants by
the investigating prosecutor;(3) Preliminary action by investigatingprosecutor:• Dismiss the complaint if he finds
no cause to continue with theinquiry.
• Issue subpoena to respondent
requiring him to submit a counteraffidavit. However, if no suchcounter-affidavit is submitted, theinvestigating prosecutor shallresolve the case on the basis of theevidence submitted by the police,
public officer or complainant.
If a counter-affidavit is submitted but
there are matters which needclarification, the investigatingprosecutor may set a hearing topropound clarificatory questions.
(4) Preparation of resolution. Based on
the evidence presented, theinvestigating prosecutor may:
• Prepare information if he finds
cause to hold the respondent fortrial. An information is anaccusation in writing charging aperson with an offense subscribedby the fiscal and filed with thecourt.
• Otherwise, recommend thedismissal of the complaint.
However, in both cases, the approval of
the Provincial or City Prosecutor or the
Chief State Prosecutor of such
recommendation is necessary.

276

As regards offenses within thejurisdiction of Municipal Trial Courts, nopreliminary investigation is required bylaw. All that the public prosecutor isrequired to do is 1) to examine thecomplaint and supporting affidavit and 2)
to personally satisfy himself that theaffiants voluntarily executed andunderstood their affidavits and that thesuspect has probably committed the offense
charged. This examination anddetermination he does ex parte, i.e.,
without notice to and in the absence of thesuspect. He then files the information
directly with the court.
At the preliminary investigation of acrime cognizable by a Regional Trial Court,
the respondent has the following rights:(1) To have notice of the investigationand to have a copy of the complaint,
affidavits and other supporting
documents;(2) To submit a counter-affidavit andother supporting documents withinten days from notice;(3) To examine all other evidence
submitted by the complainant;(4) To be afforded an opportunity to bepresent at any hearing at whichclarification of certain matters is to
be made and submit questions to theinvestigating officer for the purpose.
It bears emphasis that aside from apreliminary investigation, there is anothertype of investigation which a prosecutor
may conduct, and this is what we callinquest investigation, which is an informal
and summary investigation conducted bya public prosecutor in criminal cases
involving persons arrested and detained
without the benefit of a warrant of arrestfor the purpose of determining whether or
not said persons should remain undercustody and correspondingly be charged incourt.
A respondent against whom an adverse
resolution was issued by the investigating

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
prosecutor is not without any remedy. He
may file an appeal to the Secretary ofJustice within fifteen days from receipt of
the questioned resolution.

written arguments or memoranda after
which the case is deemed submitted for
decision.
The law secures to every accused thefollowing rights during trial:

III. THE JUDICIAL PROCESS
If the preliminary investigation resultsin the finding that a crime has beencommitted and the suspect is probably
guilty thereof, the public prosecutor will filethe corresponding information in theproper court; thus, activating the judicial
process.
The case shall then be set forarraignment which is the first stage of acriminal action. It consists of the readingof the information or criminal complaint
in court to the accused in open court. The
accused is then asked how he pleads. The
accused may plead guilty or not guilty tothe offense charged. If he refuses to plead,a plea of not guilty will be entered for him.
If the accused pleads guilty, the court shallsentence him to the corresponding penalty
if it is satisfied of the voluntariness of theplea, and otherwise, of the guilt of theaccused. If the accused pleads not guilty,
the case is set for pre-trial and/or trial.
The pre-trial shall consider the following
matters:(1) Plea bargaining;(2) Stipulation of facts;(3) Marking for identification of evidenceof the parties;(4) Waiver of objections to admissibilityof evidence; and(5) Such other matters as will promote afair and expeditious trial.
No agreement or admission during the
pre-trial shall be used in evidence against
the accused unless reduced in writing andsigned by him and his counsel.
After the pre-trial stage, trial follows.
The prosecution commences thepresentation of evidence, followed by theaccused. Prosecution may present rebuttal
evidence. The parties may also present

a. To be presumed innocent until thecontrary is proved beyond reasonable
doubt;
b. To be informed of the nature andcause of the accusation against him;c. To be present and defend in person
and by counsel at every stage of theproceedings, from the arraignment to thepromulgation of judgment. The accusedmay, however, waive his presence at thetrial pursuant to the stipulations set forthin his bail bond, unless his presence is
specifically ordered by the court for
purposes of identification. The absence of
the accused without any justifiable cause
at the trial or a particular date of which hehad notice shall be considered a waiver of
his right to be present during that trial.
When an accused under custody had been
notified of the date of the trial and escapes,
he shall be deemed to have waived his rightto be present on said date and on all
subsequent trial dates until custody isregained. Upon motion, the accused mybe allowed to defend himself in person
when it sufficiently appears to the courtthat he can properly protect his rights
without the assistance of counsel;
d. To testify as a witness in his own
behalf but subject to cross-examination onmatters covered by direct examination. His
silence shall not in any manner prejudicehim;
e. To be exempted from being compelled
to be a witness against himself;
f. To confront and cross-examine thewitnesses against him at the trial. Either

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RESOURCE MATERIAL SERIES No. 53
party may utilize as part of its evidence
the testimony of a witness who is deceased,out of or cannot with due diligence be foundin the Philippines, unavailable or otherwise
unable to testify, given in another case orproceeding (judicial or administrative)
involving the same parties and subject
matter, the adverse party having had theopportunity to cross-examine him;g. To have compulsary process issued tosecure the attendance of witnesses andproduction of other evidence in his behalf;h. To have a speedy, impartial andpublic trial; andi. To have the right of appeal in all cases
allowed and in the manner prescribed bylaw.
After the reception of the contending
parties pieces of evidence, the case is now
submitted for decision which the court
must render within ninety days after trial.
If the court acquits the accused because
in its view he is innocent or his guilt is notproven beyond reasonable doubt, the caseis definitely ended. Appeal by theprosecution is barred by the principle ofdouble jeopardy.
On the other hand, if it convicts theaccused because in its view his guilt of thecrime charged has been established beyond
reasonable doubt, the latter may move fora new trial or reconsideration which may
be based on either of the following grounds:
a. That errors of law or irregularities
have been committed during the trial
prejudicial to the substantial rights of theaccused; orb. That new and material evidence has
been discovered and produced at the trial,
and which, if introduced and admitted,
would probably change the judgement.

278

The motion for reconsideration may bebased on the errors of law or fact injudgment.
In lieu of moving for new trial orreconsideration or after denial of suchmotion, the convicted accused may appeal
to the Court of Appeals or the Supreme
Court within the time fixed by law. If theappeal of the convicted accused isunsuccessful and his conviction is affirmed,
the case will be remanded to the court oforigin for the execution of the judgement.
The latter court will set a date for theaccused to present himself for theenforcement of the judgement. At the timethus appointed, the court will issue anorder of commitment and the accused ispassed on the next component.
IV. PENAL OR CORRECTIONAL
PROCESS
Punishment is the isolation of theconvicts by imprisonment for the periods
laid down by the courts or in extreme cases,
their execution by the method prescribedby law—and correction and rehabilitation
are functions undertaken by theinstitutions set up by law, e.g., the Bureauof Prisons, Parole and Probation
Administration.
V. THE COMMUNITY
After the convicts have passed throughthe correction component—either
unconditionally (as by full service of theterm of imprisonment imposed on them),or by parole or pardon—they go back to thecommunity and either lead normal lives as
law-abiding citizens in their barangays, or,regrettably, commit other crimes and thus,
go back through the same processes andstages of the criminal justice system.
The community at large—through theappropriate legislative agencies, public andprivate educational institutions, parents
and guardians, churches, religiousorganizations, civic associations, etc.—

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
develops and exacts conformity withacceptable moral and ethical values,
creates the environment for thedevelopment of civic-spirited citizens, andfosters respect for and observance of theRule of Law.
In particular, members of the community
having knowledge of facts relevant to theinvestigation or prosecution of crimes, areexpected to cooperate with law enforcers
and investigators, by reporting crimes andgiving evidence against the offenders.
Attorneys in legal practice, or pertaining
to associations commited to giving legal aid
to indigent or otherwise deserving
individuals, should be reckoned as part of
the fifth component of the criminal justicesystem, the community. They participate
directly or indirectly in the criminal justicesystem by giving advice to, or representing,persons involved in criminal actions before
the proper authorities.
The community component should also
include government institutions that play arole in the criminal justice system, such as
the Bureau of Posts—which delivers court
notices; the Commission of Immigration andDeportation—which may prevent the
departure of suspects from the country; the
Bureau of Telecommunications—whichtransmits communications by telephone,telegram or radio; and the government
hospitals and medical centers (like the
National Psychopathic Hospital)—which
furnish experts who may enlighten the
courts on issues involving medical or othersciences, etc. Private institutions and civicorganizations should also be deemed part
thereof, since they may also have roles toplay in the criminal justice system.

community. The criminal justice system isall of these institutions or pillars
collectively. For it to work efficaciously andspeedily, it is essential for all these pillars
to work efficiently and with dispatch, andin cooperation and in coordination with one
another.
REFERENCES
1. The Court and the Criminal Justice
System by Honorable Chief JusticeAndres Narvasa, Supreme Court of thePhilippines.
2. Rules of Court (Rules 110 to 127).
3. P r e s i d e n t i a l D e c r e e N o . 1 2 7 5(Reorganizing the Prosecution Staff ofthe Department of Justice and the
Offices of the Provincial and City
Prosecutors, Regionalizing theProsecution service and Creating the
National Prosecution Service).
4. The Philippine Constitution.
5. Republic Act 296, as amended by Batas
Pambansa 129, otherwise known as the
Judiciary Act.
6. Executive Order No. 292 dated July 25,
1987, otherwise known as the
Administrative Code of 1987.
7. DOJ Order No. 223 dated June 30,
1993C (Revised Rules on Appeal from
Resolutions in Preliminary
Investigation/Reinvestigation).

CONCLUSION
The criminal justice system is not justthe agencies and persons charged with law
enforcement; not just the publicprosecution, nor the courts, nor just thepenal and correctional system, nor just the279

RESOURCE MATERIAL SERIES No. 53

THE ROLE AND FUNCTION OF PUBLIC PROSECUTORS IN
THAILAND
Somjai Kesornsiricharoen*
I. INTRODUCTION
In this report, I will address general
information about the responsibilities andadministration of the Office of the Attorney
General of Thailand. Emphasis will be put
on its role in the national criminal justicesystem, i.e., the role in investigation,prosecution function, scope of discretion,
the role in trial, and sentencing as well as
controls on prosecution authority. Finally,
the problems facing the public prosecutors
in Thailand and their tentative
recommendations for solution will bepresented for your information in thecomparative study of the role and functionsof the public prosecutors.
II. HISTORICAL BACKGROUND
From 1887, in the reign of King
Chulalongkorn, Thailand modernized herlegal system to avoid from being the victim
of extraterritoriality from the thenpowerful western countries. The Ministryof Justice was founded in 1892. From 1893,
the courts have since been within theadministration of the Ministry of Justice,but guaranteed independence in judicial
affairs. In 1893, the Office of the Attorney
General was established to be in charge of
public prosecution. The first Thai penal
code was introduced in 1908 before beingreformed and reintroduced in 1956. As to
the Thai criminal procedural code, it has
been in effect since 1935. In that era,
Thailand adopted the civil law system.
However, the common law influence still* Senior Public Prosecutor, International Affairs
Department, Office of the Attorney General,
Thailand.

280

existed in some areas of law including theprocedure laws of Thailand. Private
prosecution and adversary proceedings incriminal trial are some examples in thatregard.
The Office of the Attorney General wasan agency of the Ministry of Justice at thetime of its establishment. From 1922 to1991, it was part of the Ministry of Interior.
Since 1991, the Office has become an
independent agency under the directsupervision of the Prime Minister to ensure
more independence and impartiality of the
public prosecutors. Accordingly, the Prime
Minister has no authority to interfere withthe criminal justice functions of the publicprosecutors. His role is limited only toadministrative functions of the Office of the
Attorney General.
III. FUNCTIONS AND
INDEPENDENCE
As Thailand is a single state, the Officeof the Attorney of Thailand is the sole officethat has the primary functions ofprosecuting and litigating criminal cases
throughout the country. The office is also
assigned to defend government officials
charged with offenses related to the lawful
performance of their duty. Moreover,regarding international mutual legal
assistance in criminal matters, the Officeserves as the Central Authority. In
addition, the Office is entrusted with theduty to protect the state interest byrendering legal opinions to government
agencies, reviewing draft government
contracts, and handling civil cases whereby
public agencies are parties. The Office also
acts as the center of civil rights protection

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
as well as renders national legal aid to thepoor and needy.
The powers and functions of the publicprosecutors in the Thai criminal justicesystem are not addressed in the current
national constitution as those of judges.
However, they are clearly stated in a
number of legislation ranging from the
Criminal Procedure Code of 1934, theCriminal Procedure in Summary Court of1979, and the Establishment of theJuvenile and Family Court and its
procedures. There are also some provisions
in the Penal Code authorizing publicprosecutors to propose to the court somesafety measures, i.e., relegation,prohibition to enter a specified area, to
execute a bond with security for keeping
the peace, to be kept under a restraint in a
hospital, prohibition to carry on a certain
kind of occupation, to be imposed to somedangerous convicted persons.1 Moreover,public prosecutors are subject to the Public
Prosecutors Act of 1955 and have to comply
with internal regulation and subsequent
amendments providing for the standard tobe followed in their performing of functions
related to criminal justice.
The public prosecutors under the Office
are career professionals like in mostcounties. The system does not allow thegovernment to appoint any other legal
professional to serve temporarily as apublic prosecutor in any type of case as seen
in some countries. The qualifications tobecome a public prosecutor and screening
procedures are the same as those forjudges, i.e., being a Thai citizen by birth,
not less than 25 years old, graduated froman accredited law school and the Thai Bar
Association, having practiced law at least
two years, and (more importantly) having
no criminal or disciplinary sanction record.
Moreover, the applicants have to survive

the very competitive recruiting
examinations occasionally held. The
successful candidates have to undergo
practical training for one year in theposition as assistant prosecutors before
being royally appointed as publicprosecutors. The retirement age of all
public prosecutors is 60 years.
To ensure their independence and equal
status with the judiciary, there exists the
Public Prosecutors Commission separate
from the ordinary Civil Service
Commission to be exclusively responsible
for the personnel management affairs of
p r o s e c u t o r s , n a m e l y, r e c r u i t m e n t ,placement, appointment, promotion andtransfer. The Commission consists of 15
members, chaired by a retried highranking public prosecutor elected byprosecutors from all over the country. The
Attorney General, four Deputy Attorney
Generals, the Director General of Criminal
Litigation Department, the Director
General of Legal Counsel Department, andthe Director General of Planning andDevelopment Department are members ex
officio of the Commission. It also includes
three elected executive public prosecutors
and three elected retired executive publicprosecutors. It should be noted that theCommission has absolute power tonominate the Attorney General of Thailand
prior to the official appointment by His
Majesty the King. There are now about
1965 public prosecutors working
throughout the country.2
IV. THE ROLE IN CRIMINALINVESTIGATION
Unlike the public prosecutors in the
U.S., Japan, the Republic of Korea,

2

1

See Appendix F for statistics on safety measuresin 1996.

See Appendixes A-1 and A-3 for the organization of
the Office of the Attorney General and for statistics
on number of the public prosecutors in Thailand,
ranged by positions.

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RESOURCE MATERIAL SERIES No. 53
Indonesia or Germany 3, the Thai publicprosecutors make prosecution decisions
only based on the evidence presented by
the police in investigation files as they haveno power at all in the investigation process
by initiating, neither by taking control nor
by supervising the investigation. By law,
there is almost complete separation
between the investigation and prosecution
as the investigation is under the soleauthority of the police.4 Accordingly, thepolice has absolute power in the issuanceand execution of arrest warrant or any
other type of warrants or in granting bail3

Kittipong Kittayarak and David Johnson,“Prosecution System in Seven Countries: A
Comparative Analysis”, a research paper written
in February 1995 for UNAFEI, Tokyo Japan,
published in ACPF TODAY by Asia Crime
Prevention Foundation, pp. 86-96 (June 1994).
4 Thailand Criminal Procedures Code (CPC), sections
120 and 121.
Section 120, “The public prosecutor shall not entera charge in Court without an investigation having
previously done related to the offense in respect ofwhich the charge is entered.”
Section 121, “The investigative official has the power
to investigation in reference to all criminal cases.
But in case of compoundable offense, investigation
shall not be held unless a complaint has been made.”
5 The police has the power to detain the arrested for
up to three days from the time of arrest to theirpresence before the court. Thereafter, the police
has to request an extension of detention from thecourt for the purpose of completing theinvestigation. The court has the power to grant
one or several successive remands not exceeding
12 days each, but the total period depends on theseriousness and gravity of the charges, but the
maximum is 84 days. (CPC section 87 as amended
in 1996.) However, for minor offenses triable inMagistrate Courts, after the arrest, the police are
required to send the suspect together with theinvestigation file to the public prosecutors so that
he is charged to the courts within 48 hours fromthe time of his arrest. (Law on the Establishmentof Magistrate Courts and procedures of 1956,
section 7 as amended in 1996)282

to alleged offenders during an investigation
stage, without screening procedures byeither the courts or public prosecutors.5
Senior police officials from the rank of Sublieutenant as the head of sub police station
and upwards can issue arrest or search
warrants by themselves. Moreover,warrantless arrests and searches areallowed by the police in somecircumstances.6
6

According to CPC section 78, a warrantless arrest
could be executed in the following cases:(1) when such person has committed a flagrant
offense as defined in section 80.
(2) when such person is found attempting tocommit an offense, or is found under suspicious
circumstances indicating his intention tocommit an offense by having in his possession
implement, arms or other articles likely to be
used for the commission of an offense;(3) when there are reasonable grounds to suspectthat such person has committed an offense andis about to abscond; and(4) when another person has requested the arrestof such person charging him with thecommission of an offense and stating that aregular complaint has been made.
According to CPC section 92, a warrantless search could
be executed in a private place in the following cases:(1) where there is a cry for help emanating fromthe private place(2) where a flagrant offense is evidently beingcommitted in the private place(3) where a person having committed a flagrant
offense, while being perused, taken refuge; orthere are serious grounds for suspecting thatsuch person is concealing, in private place;(4) where there are reasonable grounds for
suspecting that an article obtained through anoffense is concealed or to be found inside andthere are reasonable grounds to believe that byreason of delay in obtaining a warrant of search
the article is likely to be removed;(5) where the person to be arrested is the head of
the household of such private place and there
is a warrant for his arrest, or the arrest is to bemade under section 78....”

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
Thai public prosecutors cannot give any
direction to the police officer of a criminal
investigation from the outset of the reportof the crime, thus making them different
from their counterparts in other civil law
countries. The role of public prosecutors
only begins in all types of cases, no matter
how serious or sensational the cases are,after the completion of the investigationand the police sends the investigation fileto them for consideration to prosecute or
not prosecute. The public prosecutors may
send a request to the police for further
investigation or send them any witnesses
for their own inquiry but have no chance
to examine the alleged offenders
themselves. However, by reviewing theevidence as only chosen to be presented by
the police, they have certainly no chance
to verify the truth of the case. Even when
the police fabricate or bring in misleading
evidence as a result of bribery or prejudiceagainst the offenders or victims, the publicprosecutors have no way to perceive suchfacts. Such practice has led to excessive
power and abuse of power by the police dueto the lack of checking mechanisms toensure the legality and truthfulness of theinvestigation.
Seeing this situation as a serious
obstacle to ensuring justice to all parties
in criminal procedure, the Office of the
Attorney General has struggled for somerole in the investigation stage for years.
Actually, we do not need to take over theinvestigation from the police in all cases
but for some high profile or complicatedcases or special offenses in a position as asupervisor. However, we have neverachieved such goals due to politically strong
and powerful opposition by the police. This
also reflects an erroneous perspective andinadequate cooperation among agencies in
the criminal justice system. Our striving
for some role in the investigation was
distorted as a fight for power rather thana sincere effort for more justice andefficiency in the criminal process.

V. FUNCTION OF PROSECUTION
As in most countries, one of significant
function of public prosecutors is to makeprosecution orders against alleged
offenders or non-prosecution orders. In
Thailand, public prosecutors are notallowed to institute a charge in court
without previous investigation with regard
to that charge.7 As above-mentioned, Thai
public prosecutors have no role in theinvestigation stage, thereby, making theirdecisions only based on the evidence foundin the initial investigation file or in a
supplementary file presented by the police
as a result of further investigationaccording to a public prosecutor’s order.
Their prosecution orders are usually basedon the sufficiency of evidence presented toprove the offenders guilt to the court. They
have no chance to interview the suspect
before the prosecution or give instruction
to conduct further investigation. Under thelaw, the prosecution order is final. The
courts usually accept the case to trial
without preliminary hearing in all typesof cases, even though the law allows themto do so if they think fit, due to their trustin the screening of cases by the publicprosecutors. Nonetheless, due to the lackof opportunity to deal with the evidence
from the beginning, sometimes we cannot
save the innocent offender from being
prosecuted. There is no written law
defining the evidentiary standard for the
charge in Thailand. In practice, thestandard in prosecution is usually basedon probable cause. In other words, Thai
public prosecutors will normally issue aprosecution order if the case is likely to gain
conviction against the accused.
It should be noted that Thai publicprosecutors have no power to accept a pleaof guilty to a lesser crime than originallycharged or plea bargaining as is done in
the United States. Additionally, in casesof theft, snatching, robbery, gang-robbery,
7

CPC section 120.

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RESOURCE MATERIAL SERIES No. 53
piracy, extortion, cheating and fraud,criminal misappropriation and receiving
stolen property, public prosecutors also
have the responsibility to request for acourt order granting the restitution of theassets by the defendant to the victim of thecrime or indemnity thereof.8
In case of insufficiency of evidence, theprosecutor will normally issue a nonprosecution order. However, this type oforder, if not issued by the Attorney General
himself, is not final unless concurred by the
Director-General of Police Department forcases occurring in Bangkok, or by theProvincial Governor for cases occurringoutside Bangkok. If they disagree with theorder, the case will finally be reviewed by
the Attorney General and, therefore, hisorder, whether or not to prosecute, will befinal.9 The final non-prosecution order
8 CPC section 43, “In cases of theft, snatching, robbery,gang robbery, piracy, extortion, cheating and fraud,criminal misappropriation and receiving stolen
property, where the injured person has the right toclaim the restitution of the property he has been
deprived of through the offense, or the value thereof,
the public prosecutor, when insituting the criminal
prosecution, shall, on behalf of the injured person, apply
for restitution of the property or the value thereof.”
9 CPC section 145, “In the case where there is an issue
of a non-prosecution order other than that of the
Attorney General, if it is in Bangkok, the investigation
file together with the order shall forthwith besubmitted to the Director-General, Deputy DirectorGeneral or Assistant Director-General of the Police
Department, the file of investigation together withconflicting opinions shall be sent to Attorney Generalfor decision. If it is in provincial area, the file ofinvestigation together with the order shall forthwith
be submitted to the Governor of such province...
In the case where the Director-General, Deputy
Director-General or Assistant Director-General of the
Police Department, or the Governor of the otherprovince disagrees with the order of the publicprosecutor, the file together with conflicting opinions
shall be sent to the Attorney General for decision....”
See also Appendix B for statistics on the decisions of
the Attorney General during 1991-1996.

284

usually prevents further investigation
against the offender on account of the sameoffense unless there is fresh evidencematerial to case that would likely lead tothe conviction of the alleged offender.10 The
power of the Attorney General in issuingnon-prosecution order has been strongly
criticized recently because it is argued that
it is irrevocable and not subject to be
examined by any agency in the criminal
justice.
On the other hand, like in England andWales 11 and some other common law
countries, the CPC also allows private
prosecution or prosecution by the victim or
injured party12 in most types of cases except
10 CPC section 147 “After a final non-prosecution

order has been issued, no investigation can be madeagain relating to the same person on account of thesame offense, unless there is fresh evidencematerial to the case that would likely lead to theconviction of the alleged offender.”11 Kittipong Kittayarak and David Johnson,“Prosecution System in Seven Countries: A
Comparative Analysis”, supra note 3.
12 According to CPC Articles 1(4), 5 and 6, “injured
person” means a person who has received injury
through the commission of any offense including:(1) the legal representative or custodian in respect
only of offenses committed against the minor
or incompetent person under his charge;(2) the ascendant for descendant, the husband orwife, in respect only of criminal offenses inwhich the injured person is so injured that hedied or is unable to act by himself;(3) the manager or other representatives of a legal
person in respect of any offense committed
against such legal person; and(4) in a criminal case where the injured person isa minor having no legal representative, or is aperson of unsound mind or an incompetentperson having no custodian, or where the legal
representative or custodian is unable todischarge his duty for any reason including
conflict of interests with the minor orincompetent person, a relative of such person
or an interested person may apply to the court
to appoint him as a representative ad litem.”107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
the cases where the state is the sole injured
party such as offenses against the state
security or against the Monarchy, etc.
Therefore, the final non-prosecution orders
usually will not bar private prosecution
against the same offender.13 Nevertheless,in practice, the public prosecutors
dominate the prosecution because there isso limited private prosecution brought to
13 CPC section 34, “A non-prosecution order does not

bar the right of the injured person himself toinstitute a prosecution.”
14 CPC section 162 (1)CPC section 162 “Where the charge is found to be
conform with the law, the Court shall act as follows:(1) in the case where a private prosecution is theprosecutor, the Court shall make a preliminary
examination, but, if the public prosecutor has
also instituted a criminal prosecution with thesame charge, sub section (2) will apply;(2) in the case entered by the public prosecutor,
the Court need not to hold a preliminary
examination, but may do so if it thinks fit.
In the case where there is a preliminary
examination as aforesaid, if the accused pleads
guilty, the Court shall accept the charge fortrial.”
15 CPC sections 165 and 170.
Section 165, “In the case where the charge isentered by a private prosecutor, the Court has thepower to hold the preliminary examination in theabsence of the accused; the Court shall serve oneach accused a copy of the charge and notify him ofthe date fixed for the preliminary examination. The
accused may attend the examination with orwithout a defense counsel to cross-examine thewitness or the prosecution. If he will not attend,
he may appoint a counsel to cross-examine thewitnesses for the prosecution. The accused shallnot be asked by the Court to make a statement,
and, before acceptance of the charge, the accusedshall not be treated as such”.
Section 170, “The order of the Court to the effectthat there is a prima facie case is final, but the orderto the effect that there is no prima facie case may
be appealed against by the prosecutor in accordancewith the provisions of this Code governing appeal.”trial in this case as a result of the public’s
trust in the professional competence of
public prosecutors. Moreover, private
prosecution is subject to a screening by the
court through preliminary hearing. 14
During the preliminary hearing, thedefendant is not allowed to present his own
witnesses but allowed to appoint a lawyer
to defend him and entitled to cross-examine
the plaintiff ’s witness. The order of thecourt to accept the case to trial is final.15
In juvenile delinquency cases, theinjured party cannot bring the case to court
without the approval of the Director of theJuvenile Observation and Protection
Center in order to protect the children from
improper humiliation. 16 In case of his
consideration of non-prosecution, theinjured person may apply by motion to thecourt for permission to bring the criminalcase to court. Such order of the court will
be final.
However, in most cases, private
prosecution in practice is practically
restricted to compoundable offenses suchas offenses against bad checks or
defamation offenses. Additionally, in caseof prosecution by public prosecutors, theinjured party may apply by motion to thetrial court to be a joint plaintiff in the case.17
However, they are prevented from doing oromitting to do any act causing detriment
to the case of the public prosecutor or else
the public prosecutor may request the court
to order the injured party to do or not to dosuch acts. On the other hand, in a criminal
prosecution of a non-compoundable offense
instituted by the injured person, the public
16 There are 11 Juvenile and Family Courts and 19

Juvenile and Family sections of Provincial Courts
scattered throughout Thailand.
17 CPC section 30, “In a criminal prosecution
instituted by the public prosecutor, the injured
person may apply by motion to associate himself
as prosecutor at any stage of the proceedings before
the pronouncement of judgment by the Court ofFirst Instance.”

285

RESOURCE MATERIAL SERIES No. 53
prosecutors may apply by motion toassociate themselves as prosecutor at any
time before the conclusion of the case.18
In addition to insufficiency of evidence,in all cases according the CPC, the right toprosecute by the public prosecutors is also
repealed by the following reasons:19(1) the death of the offender;(2) in case of a compoundble offense, thewithdrawal of the compliant or of theprosecution or by lawful compromise;(3) the settlement of the offense in petty
cases according to the CPC
requirement20;(4) a final judgment in reference to theoffense for which the prosecution has
been instituted;

18 CPC section 31, “in a criminal prosecution of a non-compoundable offence instituted by the injured
person, the public prosecutor may apply by monitor
to associate himself, as prosecutor any time before
the case becomes final.”
19 CPC section 39.
20 According to CPC section 37, for trivial offenses
punishable with only with a fine, the cases can be
settled by the payment of maximum fine by theoffenders to the police officers. Likewise, foroffenses punishable with maximum of one-month
imprisonment or a fine not exceeding 1000 baht
(US$40), or other offenses as having punishable
only with fine of the maximum not exceeding ten
thousand baht (US$400), or tax offenses with the
maximum of fine not exceeding 10000 baht
(US$400), the police officers investigating the cases
can impose an administrative fine on the offenders.
If the offenders voluntarily pay the amount of fine
fixed by the investigator, the cases can be dropped
from prosecution.
After the case has been settled by the investigating
officer by such means, the investigation file andtogether with the notes of settlement must be sent
to the public prosecutor. If the public prosecutor isof the opinion that the settlement is not proper, he
may make a prosecution order and request thealleged offender for prosecution.

286(5) the coming into force of a law
subsequent to the commission of theoffense, abolishing such offense;(6) prescription; and(7) amnesty.
VI. PROSECUTORIAL DISCRETION
The CPC does not clearly prohibit the
public prosecutors from using discretion in
not to prosecute any offender even if there
exists sufficient evidence to prove his guiltin court. Even if there is sufficientevidence, public prosecutors should
consider whether the public interest
requires prosecution. However, the publicprosecutors have exercised this discretionfor public interest in only a few cases. Oneof the historic cases was that the Attorney
General had used this discretion in
deciding not to prosecute a briber in orderto save him as a key state witness against
a corrupt minster because he thought thatthe public interest in punishing the corrupt
official outweighed the briber’s misconduct.
According to the internal regulation on thehandling of criminal cases by publicprosecutors, it clearly states that if a publicprosecutor is of opinion that theprosecution may not accord the public
interest or be against the public moral ororder or affect the national security orimportant national interest, he must refer
the case to the Attorney General for further
consideration.
The Office of the Attorney General iscautious in exercising the discretion byrequiring approval of the Attorney General.
Nonetheless, only a few cases have been
forwarded to the Attorney General for
consideration.
Moreover, in juvenile delinquency cases,
the Law on the Establishment of Juvenile
and Family Courts and Their Procedures,clearly states that public prosecutors are
entrusted with prosecutorial discretion in
dropping a case if proposed by the Directorof the Juvenile Observation Center that

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
such delinquents can improve their
behavior and easily go back to normal life.
Their orders are final and not subject toany review. Nonetheless, so far, no casehas been forwarded to public prosecutors
for a non-prosecution order according tothis section.
In the past, we attempted to introduce
the system of suspended prosecution by law
as a means of expansion of discretionary
power in order to reduce to caseloads incourts and population in jail. More
importantly, we realized that in manycases, criminal penalization might not beappropriate for some offenders in some
types of cases. We proposed to use thesuspension of prosecution scheme forcrimes of negligence or minor offenses witha maximum imprisonment of not morethan three years and conditional upon theconfession of the offenders and their
willingness to comply with the conditionsof probation or supervision to be imposedby the public prosecutors. If such offenders
commit no crime during that period, theprosecution will be permanently dropped.
If they commit other crime or fail to accord
to any imposed condition, the suspensionof prosecution will be withdrawn and they
will be prosecuted for both crimes.
However, we failed to achieve this for lackof correct understanding of the role ofpublic prosecutors among our criminal
agencies concerned. It was misinterpreted
as interference with the power of the
judiciary. As a result, presently, there exist
case overloads in courts and prisons are
overcrowded. Surely, this situation will beworse in the future.
VII. ROLE IN CRIMINAL TRIAL
As in most countries, a defendant isguaranteed under the constitution to bepresumed innocent until proven guilty.
Before the trial, public prosecutors will
institute criminal prosecution by entry ofa charge in the courts.21 A charge has toindicate sufficient facts as to the time andplace of such act and the persons or articles
concerned which are reasonably sufficient
to give the accursed a clear understandingof the charge.
According to the CPC, the criminal trial
is required to be done in open court and in
the presence of the defendant. When the
public prosecutor and the defendant are
before the court, and after the court has
been satisfied as to the identity of the
defendant, the charge will be read out andexplained to the accused and then he will
be asked whether or not he has committed
the crime and what will be his defense. The
statement made by the accused will be
written down. The defendants areguaranteed, according to CPC, the right toa defense lawyer in cases of capital
punishment. Additionally, in cases where
the defendant is a juvenile of no more than
17 years of age or where the imprisonment
21 The courts in Thailand are divided into three levels,

namely, the Courts of First Instance, the Court ofAppeal and the Supreme Court. Crimes occurringin Bangkok may be prosecuted in the Criminal
Court, and the the Southern Bangkok Court, andthe Thonburi Criminal Court, depending on the
territorial jurisdiction of those courts. However,for the offense having an imprisonment term notexceeding three years or a fine not over 60,000 baht,
the case must be prosecuted in the Magistrate Court
having jurisdiction over the case. Moreover,juvenile delinquents committing crimes in Bangkok
shall be prosecuted in the Central Juvenile andFamily Court. In the provinces, the criminal charge
must be filed in the Provincial Court, theMagistrate Court or the Provincial Juvenile andFamily Courts as the case may be. Judges of theMagistrate Court sit singlely as opposed to othercourts of first instance where two judges are
required for the forum. The quorum of the Juvenile
Court consists of two career judges and two
associate judges, one of which must be a woman.
See Appendix A-3 for the organization of the courtsof justice in Thailand.

287

RESOURCE MATERIAL SERIES No. 53
penalty is defined, the lawyers will be
provided if needed by the defendant.22
The Thai judiciary has been entrustedwith exclusive power to determine bothquestions of fact and of law in criminalcases, as there is no jury system inThailand. It is noteworthy that there is nopractice of pre-trial meeting to facilitate or
expedite the trial process among the judge,
public prosecutor and defense lawyer as
seen in some countries. Before the trial,
public prosecutors need not to disclose theirevidence to the defense. They have toprovide only a list of witness anddocuments to the court and the defense.
Unlike in Japan, in case that thedefendant pleads guilty, the court willconvict and sentence him according to thelaw without any further hearing except ina case of serious offence where a minimum
penalty is more than five years
imprisonment. In such cases, the court has
to hear the public prosecutors’ evidence tobe sure that the defendant is the real
offender. Normally, this trial is in brief.
The public prosecutors will present to thecourt all relevant documents and bring key
witnesses or the victim to testify before thecourt so as to prove that there was crimecommitted by such a defendant. The courts
usually reduce the penalty to be imposed

22 CPC section 173, as amended in 1996, “In the caseof offenses punishable with death and before
commencing trial, the Courts shall ask the accused
as to having a defense counsel or not. If he has
none, the Court shall appoint one for him.
In the cases of offenses punishable withimprisonment and in cases of offenses committed
by the accused not yet exceeding 18 years of age on
the day of charge, the Court before commencing thetrial, shall ask the accused whether he has a counsel
or not. If he has none and requires one, the Court
shall appoint one for them.
The Court shall pay a reward, as specified by theRegulation of the Ministry of Justice, to the counsel
appointed according to this section.”288

by half in case that the defendants plead
guilty.
In contested cases, the publicprosecutors have to prove beyond
reasonable doubt that the defendant is
guilty as charged. Public prosecutors
usually have the burden in search of thetruth and present evidence to the court. In
criminal trials, the courts have broad
discretion in accepting evidence. CPC
section 226 provides that any material,
documentary or oral evidence likely toprove the guilt or the innocence of theaccused is admissible, provided that it is
not obtained through any inducement,
promise, threat, deception or otherunlawful means. As to hearsay evidence,
it seems that there is no provision of law
prohibiting hearsay evidence. All evidence
will be admissible if relevant to the caseand legally acquired. It has been
consistently held that the witnesses’
deposition and the accused’s confession
made to the police at the investigation
stage could not be admitted to court if they
were executed by threat, deception,
promise or other wrongful means. 23
However, the real question is the value ofsuch evidence when the defendant denies
his voluntariness of such statement.
The Thai courts have long adopted theadversary manner procedures whereby the
courts are impartially passive throughout
the trial. Their role in the trial is to takenote of the witness testimony as examined
and cross-examined by the parties, bringrelated documents into the file, and decideupon verbal arguments raised during thatsession. Such practices have induced
strong criticism by some scholars thatjustice may not be best done unless thecourts also play an active role in the
23 CPC section 135, “No investigating officer shallmake or cause to be made, any deception, threat orpromise to any alleged offender inducing such
person to make any particular statement concering
the charge against him.”

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
courtroom. As a consequence, this has led
to a very difficult task for publicprosecutors in Thailand because they haveno chance to become familiarized with theevidence and are not in a position toobserve the effectiveness and legality of theinvestigation from the beginning. Even
when the witnesses reverse their
testimony, public prosecutors have no way
to determine which testimony is true.
Principally, public prosecutors arepresumed impartial throughout thecriminal trial. The true aim of theprosecution should be to seek the truth
rather than merely seek a conviction.
Practically, this is highly possible inexercising a prosecution function stage.
However, during trial, it is very hard forthe public prosecutors to be impartial
because they have to fight strongly against
defense lawyers without the help from thecourt in seeking justice in the case.24
The trial session is usually not conductedin a consecutive period. The courts always
set a trial session by appointment as agreed
by all parties, usually once or twice amonth. Some cases take one or two years
or more to complete. As a result, for someinnocent defendants, if unable to be
granted bail, such long period of trial
aggravates their suffering and tragedy.
Therefore, the Ministry of Justice is now
proposing a bill to provide a compensation
scheme for those innocent defendants as aresult of the miscarriage of justice. The
bill is now under consideration of thegovernment.
It should be noted that publicprosecutors could exercise discretion towithdraw the cases from trial in the Court

24 See Appendixes G to I for statistics on judgmentsof the Courts of First Instance. Please note thatthe conviction rate is very high but it includes somany trivial cases or some serious cases where
defendants plead guilty.

of First Instance.25 However, the law does
not establish clear-cut guidelines for thewithdrawal of cases. Public prosecutors
should do this with caution to the interestof justice. The withdrawal of a case by
public prosecutors does not deter the
injured person from re-instituting
prosecution. 26 In practice, the publicprosecutors used to exercise this discretionin politically-related cases so as to preserve
national unity or avoid more turbulence inthe nation.
VIII. ROLE IN SENTENCING
The court has absolute power insentencing if the defendant is found guilty.
Unlike the U.S. justice system, there is nosentencing hearing separated from the trial
process in Thailand. Practically, public
25 CPC section 35, “A motion for leave to withdraw acriminal prosecution may be filed at any time before
judgment by the Court of First Instance. The Court
may issue an order granting or refusing such leave
as it thinks fit. If the motion is filed after theaccused has submitted his defense, he shall be
asked if he has any objections, and the Court shalldismiss the motion.”
26 CPC section 36, “A criminal prosecution which has
been withdrawn from a Court cannot be reinstitued
unless it falls under the following exceptions:(1) if the public prosecutor institutes a criminal
prosecution related to a non-compoundable
offence and then withdraws the prosecution,such withdrawal shall not debar the injured
person from re-instituting prosecution.
(2) if the public prosecutor withdraws a criminal
prosecution relating to a compoundable offense
without the consent in writing of the injured
person, such withdrawal shall not debar thelatter from re-instituting prosecution.
(3) if the injured person institutes a criminal
prosecution and then withdraws theprosecution, such withdrawal shall not debar
the public prosecutor form re-instituting
prosecution, except in case of a compoundable
offense.”289

RESOURCE MATERIAL SERIES No. 53
prosecutors have no direct role in proposing
the appropriate sentences to court. The
sentencing procedure has long been
perceived as the exclusive matter of courts.
However, in presenting aggravating or
mitigating circumstances to the court
during trial proceedings, public prosecutors
have some role in contributing to a proper
punishment. However, in minor cases
where the imprisonment term does notexceed two years, the courts may adjournthe convicts’ sentences to allow court
probation officials to seek the truth about
their life, occupation behavior, theirmanner in committing crime, the effects
thereof or any other related information.
The courts may suspend the imprisonment
punishment for them for up to five years.
During such period, if there exists no othercrime committed by them, their penalty
will eventually be dropped.27 In the caseof violation of conditions, or the commission
27 Section 56 of the Thai Penal Code “Whenever any

person commits an offense punishable withimprisonment and in such case the Court shallpunish with imprisonment not exceed two years, if
it does not appear that such person has received
the punishment of imprisonment previously, or it
appears that such person has received thepunishment previously, but it is the punishment
for an offense committed by negligence or a petty
offense, the Court may, when taking into
consideration the age, past record, behavior,intelligence, education and training, health,condition of the mind, habit, occupation andenvironment of such person or the nature of theoffense, or other extenuating circumstances, pass
judgment, if it thinks fit, that such person is guilty,
but the determination of the punishment is to besuspended, or the punishment is determined, but
the infliction of the punishment is to be suspended,and then release such person with or without
conditions for controlling his behavior, so as to givesuch person an opportunity to reform himself withina period to time to be determined by the Court, but
it shall not exceed five years as from the day on
which the Court passes judgment....”

290of further crime, the court may modify theprevious conditions or revoke probationand then remand the probationer to theinstitution according to original
disposition.
IX. ROLE IN INTERNATIONAL
COOPERATION IN CRIMINALJUSTICEAs earlier mentioned, the Attorney
General is designated to act as the Central
Authority according to the Act on Mutual
Legal Assistance in Criminal Matters of
1992. Upon receipt of a request forassistance from a foreign State, theAttorney General is empowered to make adecision to grant or request assistancebased on the criteria provided by the law.
The services to be given include assistancein investigation, adducing evidence,
providing information and document,
service of document, search and seizure,transfer of a person in custody to testify as
a witness in the requesting State andinitiating a criminal case in court. The Act
has certainly proved our strong intent tocooperate with foreign authorities insuppressing transnational crimes. The
requesting countries could be contracting
parties or non-contracting parties if
assured reciprocity. The law has definitely
recognized the role of public prosecutors as
the center in criminal justiceadministration.
The Office of the Attorney General has
assigned the International Affairs
Department to work particularly in thisarea including extradition matters.
Presently, our office annually renders
service to several tens of requests fromforeign governments. Our greater role inthis area surely has a meaningful
contribution to international law
enforcement as a whole.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
X. ROLE IN THE PROTECTION OF
CHILD’S RIGHTSThe Child’s Rights Protection Office wasfounded in the Office of the Attorney
General in 1995. Its responsibilities are toprotect a child’s rights by safeguarding its
rights according to international
standards, by assisting in criminal mattersspecially where children are victims ofcrime and to conducting liaison between
the governmental and non-governmental
agencies in combating and overcoming
child abuse and child exploitation
problems. From our experiences as publicprosecutors, we have learned that thecriminal procedures do aggravate thesuffering of child victims in many ways. We
are now assisting several NGOs and othergovernmental agencies in the improvementof criminal procedures related to childvictims to ensure the best interest of justice
and at the same time protecting child’s
rights. We are correspondingly working
with the Criminal Law Reform Instituteof Canada by seeking to launch a pilot
project in Chonburi, which is notorious forthe child sexual abuses business.
XI. CONTROLS OVER PUBLICPROSECUTORSThe performance of each publicprosecutor is controlled by their superiorand certainly subject to internal review. As
for the prosecution function, unlike inGermany, the Republic of Korea or Japan28,
in Thailand, no matter the case, the court
is not allowed to review the exercising of
discretion by public prosecutors. As for therole of the media, even though the Officeof the Attorney General is accessible to the
public, it is only limited to high-profile
cases. Under the law, as earlier mentioned,

the non-prosecution order, if not that of the
Attorney General, is not final unlessconcurred by the Provincial Governor forcases in the provincial jurisdiction or by
the Director General of Police Department
for cases in Bangkok jurisdiction. This is
the mechanism under the law to balance
the prosecutorial power. Recently, a newmechanism has been created in the Officeof the Attorney General to allow any party
dissatisfied with the role of the police or
the public prosecutors in the handling of acase to submit a petition directly to the
Attorney General for review. More
importantly, as also earlier stated, private
prosecution is also allowed under the CPC,
thereby, the injured party if not satisfied
with the prosecutor’s order can bring thecase to court against such offenders.
However, it happens infrequently due to for
their trust in public prosecutors. Besides,
the rule of working in a more transparent
and accountable manner has recently been
adopted in the Office of the Attorney
General in that any interested party can
examine the investigation file along withthe detailed reasoning of the publicprosecutor responsible for a case. As forthe order of the Attorney General, his final
decision on whether to prosecute or notprosecute will be published with detailed
reasoning. If there is any irregularity in acase, it can easily be found. In case there
are reasonable grounds to believe a there
must have been something like bribery as
an actual reason behind the order of the
public prosecutors, the interested party can
institute criminal proceeding on bribery
charges or call for disciplinary action
against such public prosecutors.

28 Kittipong

Kittayarak and David Johnson,
Prosecution System in Seven Countries: A
Comparative Analysis, supra note 3.

291

RESOURCE MATERIAL SERIES No. 53
XII. CURRENT PROBLEMS FACING
PUBLIC PROSECUTORS IN
THAILAND AND TENTATIVERECOMMENDATIONS FOR THEIRSOLUTION
A. Nature of Problems
1. Problems Related to the Role inInvestigation and Prosecution
As previously stated, the criminal justicesystem in Thailand almost separates the
pre-trial stage functions between
investigation and prosecution. Publicprosecutors lack the opportunity to become
familiar with all evidence to be presented
to the court from the beginning. As such,
public prosecutors are in no position toobserve the correctness and legality of work
exclusively done by the police or to serve
as a balancing mechanism in theinvestigation process. As a result, thepublic prosecutors sometimes can not saveinnocent defendants from being prosecutedand can not ensure the injured party theefficiency of criminal justice enforcement.
2. Problems Related to the Role in
Diversion
Diversion has been recognized as ameaningful tool in criminal justiceadministration to help reduce the numberof cases, which are tried in court. As aconsequence, the court can concentrate on
serious crimes and at the same time suchmeans could better rehabilitate offenders
in some cases, such as offenses ofnegligence, domestic violence or juvenile
delinquency. Our proposal to introduce thesuspension of prosecution system to thismeans in the past was not acceptable.
However, it can be argued that for the lackof our role in investigation and the lack ofan opportunity to know in-depth about thecase, suspension of prosecution may not
function effectively.

292

3. Lack of Adequate Cooperation
among Criminal JusticeAgencies
In Thailand, criminal justice agencies
are not united in the same ministry. The
Office of the Attorney General is anindependent organ under the supervisionof the Prime Minister, while the Police
Department and the Corrections
Department are under the control of the
Ministry of Interior. In contrast tointernational practices, the Ministry ofJustice has the primary function of serving
judicial affairs rather than emphasising on
the administration of justice as seen in
most countries. Moreover, their training
or development of human resources is notunited because they have separated
training. Thus, it is subject to the policy ofeach agency rather than in the interest of
the criminal justice system as a whole.
This non-organization has resulted ininadequate coordination and cooperation
among those agencies due to their different
policies and practices. It has had
significant impact on the efficiency of law
enforcement.
B. Tentative Recommendations
1. The investigation and prosecutionfunction should not be completely
separated as in the current system. The
police should not be the sole organ toinitiate criminal proceedings. The role ofpublic prosecutors in the criminal justicesystem should be increased for the greater
efficiency of law enforcement. Publicprosecutors should be essentially
supported to do the function in initiating
the criminal process and have some role ofthe investigation of serious cases and, more
importantly, to do justice to both the victim
of crime and to the offender.

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
2. Public prosecutors should be
encouraged to exercise prosecutorial
discretion. However, more guidelines aswell as measures for internal and external
control, should be adopted to effectively
control public prosecutors in the exercise
of discretion and to prevent the abuse ofcontrol. Moreover, public prosecutors
should be directly accessible to the injured
party, the media and the public to ensureaccountability and transparency in theirwork.
3. Cooperation and coordination among
criminal justice agencies are essential in
the effectiveness of law enforcement.
Improvements in all organs should beharmonized and moved toward the same
direction to efficiently ensure safety insociety and protect all parties concerned.
The courts and public prosecutors inparticular should avoid their competitive
perspective. In this present situation
where each agency works independently,
one recent recommendation is that there
should be a coordinating committee
established to be a forum for harmonizationof criminal justice policy among them.
XIII. CONCLUSION
My paper has presented the view andexperience of a civil law country. As you
may have realized, Thailand has her own
unique criminal justice system and hassome practices different from other civil
law countries. However, there has beenlong been a struggle to change some defects
in the system. I hope that improvement
will be gradually realized in the future.
REFERENCES

3. C h a n t a r a s o m b o o n , A . , “ T h e
Investigation and Prosecution in theThai Criminal Justice System,” 30
Botbundit Law Journal 618 (1983) (inThai).
4. Kittayarak, K. and Johnson, David,“Prosecution in Seven Countries: A
Comparative Study,” ACPF TODAY(June 1994).
5. Nanakorn, K. and Kittayarak, K.
“Thailand” in Criminal Justice Profile
of Asia (UNAFEI), 1995.
6. N a N a k o r n , K . “ T h a i C r i m i n a l
Procedure: Conflict between Law andPractice” 15 Thammasat Law Journal
1 (September 1985) (in Thai).
7. Office of the Attorney General, Annual
Report 1995, 1996.
8. Office of the Attorney General, Reportof the Seminar on “The Sherry Ann
Duncan Case: How to the Criminal
Justice Could Protect the Rights andFreedom of the Innocent?” (1996) (inThai).
9. Office of the Attorney General, Reportof the Seminar on “How the Criminal
Justice Agencies Could Cooperate to
Seek the Truth in Criminal Cases?”(1996) (in Thai).
10. Tasneeyaond, P. “A Proposal for
Prosecutorial Reforms in Thailand”,
UNAFEI Resources Material SeriesNo. 18, March 1980, Reports of the
Seminar, Fuchu, Tokyo, Japan.
11. T h e S e n a t e C o m m i t t e e o n t h eAdministration and Criminal Justice,
Report of the Seminar on “The Thai
Criminal Justice System”, 1995 (inThai).
12. Sang-uthai, Y., “Who Should have theInvestigative Power?” 1 Thammasat
Law Journal 20, (July 1969) (in Thai).

1. The Criminal Procedure Code of 1934.
2. The Penal Code of 1957.

293

RESOURCE MATERIAL SERIES No. 53
APPENDIX A-1
ORGANIZATION OF THE OFFICE OF THE ATTORNEY GENERAL,THAILANDTHE OFFICE OF THE ATTORNEY GENERAL

Bangkok Metropolis

Other Provinces

Criminal Litigation Dept.

Regional State Attorney Office (1-9)

Economic Crimes Dept.

Provincial State Attorney Office (73)

Narcotics Litigation Dept.

Provincial State Attorney Office of
The Magistrate Court. (21)Juvenile and Family
Litigation Dept.
Southern Bangkok
Litigation Dept.
Thonburi Criminal
Litigation Dept.

Provincial State Attorney of
Designated Areas (22)Provincial State Attorney Offices ofJuvenile and Family Litigation (11)Administration Dept.

Magistrate Court
Litigation Dept.

State Attorney Commission

Appellate Litigation Dept.

Training and Development
Legal Counsel Dept.

Tax Litigation Dept.
Technical Affairs Dept.
Labor Litigation Dept.
Attorney General’s Affairs Dept.

294

Civil Rights Protection
and Legal Aid Dept.

International Affairs Dept.

Civil Litigation Dept.

Thailand Criminal Law

504,156

479,077

450,203400,710382,649

Total
383,272

100

100

94

100

100

495,581

468,492

438,947

391,286

373,321

98.30

97.79

91.62

97.65

97.56

7,046

8,897

9,843

8,278

8,123

1.40

1.86

2.05

2.07

2.12

Percentage Prosecution Percentage Non-prosecution Percentage
100
374,137
97.62
8,051
2.10

1,529

1,688

1,413

1,146

1,205

Others
1,084

0.30

0.35

0.29

0.28

0.32

Percentage
0.28

The word “Others” means, for example, cases are sent back to inquiry officers or cases are not permitted to be prosecutedby the Attorney General.
Source: Office of the Attorney General.

Note:(1996)(1995)(1994)(1993)(1992)(1991)Year

PROSECUTION AND NON-PROSECUTION CASES OF ALLEGED OFFENDERS SENT TO THE STATEATTORNEYS DURING 1991-1996

APPENDIX A-2

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

295

RESOURCE MATERIAL SERIES No. 53
APPENDIX A-3
NUMBER AND POSITIONS OF PUBLIC PROSECUTORS
Grade
8
7
6
5
4

3
2

1

Position

Number of Prosecutors
1
4
220

Attorney General
Deputy Attorney General– Chief Executive Public Prosecutors– Regional Chief Public Prosecutors
Senior Executive Public Prosecutors– Provincial Chief public Prosecutor– Provincial Chief Public Prosecutor(attached to the Office)Senior State Attorney– Public Prosecutors– Assistant Provincial Chief Public
Prosecutors
Assistant Public Prosecutors

302
472

527
93

Total
Male:
1800
Female: 168
Source: Office of the Attorney General, as of July 1997.

296

79
1968

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
APPENDIX A-4
THE COURTS OF JUSTICE IN THAILAND

The Supreme Court

The Court of Appeal andthe Regional Court ofAppeal (4)Courts of First Instance

Courts of First Instancein Bangkok Metropolis
The Criminal Courts
The Southern Bangkok Criminal Court
The Thonburi Criminal Court
The Northern Bangkok Magistrate Court
The Southern Bangkok Magistrate Court
The Thonburi Magistrate Court

Courts of First Instancein the Provinces
Provincial Courts
Provincial Magistrate
CourtsProvincial Juvenile andFamily Courts

The Dusit Magistrate Court
The Prakanong Magistrate Court
The Taling Chan Magistrate Court
The Civil Court
The Central Juvenile and Family Court
The Central Labor Court
The Central Tax Court
The International Trade and Intellectual Property Court (will be opened
from October 1, 1997) (Please note that appeal from those courts goes
directly to the Supreme Court.)

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RESOURCE MATERIAL SERIES No. 53
APPENDIX B
DECISIONS OF THE ATTORNEY GENERAL DURING 1991-1996
Year

Cases
80

Prosecution
53

Non-prosecution
25

Others
2

46

24

22

—

43

19

23

1

49

28

18

3

45

24

20

1

96

70

22

4

1991
1992
1993
1994
1995
1996
Source: Office of the Attorney General.

APPENDIX C
MAIN OFFENCES FOR WHICH ALLEGED OFFENDERS WEREPROSECUTED IN 1996
Types of Cases
1. Narcotics Act
2. Gambling Act (Other Gamblings)
3. Immigration Act
4. Psychotropic Substances Act
5. Gambling Act (Illegal Lottery)
6. Offences of Theft
7. Offences Against Bodily Harm
8. Controlling Firearms Act (Licensable Firearms)
9. Miltary Service Act
10. Forestry Act, National Reservation Forest Act, National Park Act
11. Others
Total
Source: Office of the Attorney General.

298

Cases
85,883
73,10672,72745,51334,191
25,105
14,794
13,712
7,540
6,084
116,926
495,581

Percentage
17.33
14.75
14.68
9.18
6.90
5.07
2.99
2.77
1.52
1.23
23.59
100

Type of Cases

Source: Office of the Attorney General.

1992
382,797
60,5702,055,799
30,772
323
215
5,520
7,606
1,375
2,544,977

1991
383,11057,572
1,513,043
31,093
316
266
5,474
10,125
1,678
2,002,677

32,233
308
252
4,923
10,5881,827
2,238,006

1,724,844

1993
401,153
61,87831,425
383
262
5,316
6,501
986
2,397,139

1,832,604

1994
451,233
68,429COMPARISON OF CASE LOADS DURING 1991-1996

1. Alleged Offenders Sent for Prosecution
2. Alleged Offenders Not Sent for Prosecution(Excluding Settlement Cases)
3. Alleged Offenders Not Sent for Prosecution(Settlement Cases Only)
4. Unknown Offenders
5. Post-mortem Inquest
6. Representing as Counsels in Criminal Cases
7. Representing as Counsels in Civil Cases
8. Criminal Cases Submitted to the Court of Appeal
9. Criminal Cases Submitted to the Supreme Court
Total

APPENDIX D

34,391
368
189
6,565
6,637
924
2,440,023

1,837,919

1995
478,993
74,03735,541
381
218
7,725
13,1472,777
2,842,701

2,187,198

1996
504,620
91,094

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

299

RESOURCE MATERIAL SERIES No. 53
APPENDIX ENARCOTIC CASES PROSECUTED DURING 1991-1996
Year

Total
Case
Persons
74,44381,388Conviction
Case
Persons
73,53380,281

Acquittal
Case
Persons
230
302

82,86187,79481,90586,686181

213

92,24597,89090,877

96,267305

377

109,464

116,773

107,843

114,763305

389

119,605

127,115

116,709

123,809476

575

131,396

140,589

127,197

135,325

563

730

1991
1992
1993
1994
1994
1994
Source: Office of the Attorney General.

300

SAFETY MEASURE CASES IN 1996

Note: Statistics collected during fiscal year (October-September).
Source: Office of the Attorney General.

In-Court Proceedings
SafetySafetyType of Safety Measure
Last
New
Measures Measures
Total
Pending
Cases
Total
Applied Dismissed Disposal
Pending
Cases Persons Cases Persons Cases Persons Cases Persons Cases Persons Cases Persons Cases Persons
1.Relegation
—
—
5
5
5
5
—
—
5
5
5
5
—
—
2.Prohibition to Enter a Specified Area
2
2
1
1
3
3
2
2
1
1
3
3
—
—
3.Execution of a Bond With Security——
117 152 117 152
51
68
66
84
117 152——
4.Restraint in an Institution for Treatment——
324 329 324 329 224 222 100 107 324 329——
5.Prohibition from Taking Alcohol or Narcotic Drugs 115 120 1,487 1,517 1,602 1,637 636 653 892 907 1,528 1,560 74
77
6.Prohibition to Exercise Certain Occupations 5
5
59
59
64
64
59
59
—
—
59
59
5
5
Total
122 127 1,993 2,063 2,115 2,190 972 1004 1,064 1,104 2,036 2,108 79
82

APPENDIX F

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

301

302

479,257

457,535

428,667

381,901

363,736

Conviction
364,467

98.40

98.27

98.41

98.24

98.10

Percentage
97.87

3,398

3,479

3,076

3,306

2,947

Acquittal
3,678

0.70

0.75

0.71

0.85

0.80

75

114

13

—

—

0.02

0.02

0.003

—

—

Percentage Withdrawal Percentage
0.99
—
—

4,322

4,460

3,836

3,552

4,088

Others
4,269

0.89

0.96

0.88

0.91

1.10

Percentage
1.14

JUDGMENTS OF COURTS OF FIRST INSTANCE DURING 1991-1996

Source: Office of the Attorney General.

1996

1995

1994

1993

1992

1991

Year

APPENDIX G

487,052

465,588435,592

388,759

370,771

Total
372,415

100

100

100

100

100

Percentage
100

RESOURCE MATERIAL SERIES No. 53

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
APPENDIX H
OFFENDERS CONVICTED IN 1996
Convicted
Sentence to Death
Life Imprisonment
Imprisonment Exceeding 10 years
Imprisonment Not Exceeding 10 years
Imprisonment Not Exceeding 3 years
Imprisonment Not Exceeding 6 months
Punishment Suspended
Fine Only
Other Punishment
Total

Persons
43
235
1,933
7,359
31,83150,602
273,544
347,947
25,926
739,420

Percentage
0.01
0.03
0.26
1.00
4.30
6.84
36.99
47.06
3.51
100

Source: Office of the Attorney General.

APPENDIX I
OFFENDERS CONVICTED BY COURTS OF FIRST INSTANCE,
CLASSIFIED BY AGE, DURING 1994-1995
Age
Over 7-14 Years
Over 14-Under 18 Years
18-20 Years
Over 20-35 Years
Over 35-55 Years
Over 55 Years
Total

1994
6,524
41,386
110,026
301,717
189,463
56,042705,158

1995
9,493
45,765
111,488318,534
194,62154,120734,021

Source: Office of the Attorney General.

303

304

143,607

Total

19,203

17,642

36,845

Defendants and Others

Total

Last
Pending
Cases

Public Prosecutors

Appellants

13,147

6,405

6,742

New Cases
Cases

156,754

76,72080,034

Total
Cases

5,812

3,091

2,721

4,484

1,527

2,957

72

62

10

Convicted Acquitted Withdrawn
Cases
Cases
Cases

313

155

158

Others
Cases

2,777

1,351

1,426

New Cases
Cases

5,191

2,701

2,490

Total
Cases

1,165

608

557

976

398

578

55

42

13

Convicted Acquitted Withdrawn
Cases
Cases
Cases

Accomplishment

84

62

22

OthersCases

LIST OF CRIMINAL CASES SUBMITTED TO THE SUPREME COURT

70,315

Defendants and Others

APPENDIX J-2

73,292

Last
Pending
Cases

Accomplishment

LIST OF CRIMINAL CASES SUBMITTED TO THE COURT OF APPEAL

Public Prosecutors

Appellants

APPENDIX J-1

2,280

1,110

1,170

Total
DisposalCases

10,681

4,835

5,846

Total
DisposalCases

37,342

17,883

19,459Pending
Cases

146,073

71,88574,188Pending
Cases
RESOURCE MATERIAL SERIES No. 53

Direct Control

Police investigative
officer can revitalize
the case if there is
fresh evidence tosupport the charge.

External Control

CONTROLS OVER PUBLIC PROSECUTORS– Director General of
Police Dept.
– Provincial Governor

Hierarchical Control

Internal Control

APPENDIX K

Investigation by theAnti-Corruption
OfficeDisciplinary Action

Media

Private Prosecution

Indirect Control

107TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

305

306

Prosecution Order

Privateprosecution

Not agree

Injured Party

Agree

Non Prosecute
Case dropped
unless there is
fresh evidence

Attorney General
to reviewNot agree

ProsecuteCase Dropped
unless there is
fresh evidence
to prove guilty

Agree

DISPOSITION OF CASES

Public Prosecutors

Non-Prosecution Order

Director General of the
Police Department
Provincial Governor

APPENDIX L

The Corrections
Department

Guilty verdict

Public Prosecutors
appealCase dismissed

CourtsRESOURCE MATERIAL SERIES No. 53

107TH
INTERNATIONAL
TRAINING
COURSEREPORTSOF THECOURSEREPORTS OF THE COURSEGROUP 1
THE RELATIONSHIP OF THE PROSECUTION WITH THE
POLICE AND INVESTIGATIVE RESPONSIBILITY
Chairperson
Co-Chairperson
Rapporteurs

Members

AdviserMr. Zafar Ahmad Farooqi
Mr. Takahiro Saito
Mr. Winfred Ansah-Akrofi
Mr. Ersyiwo Zaimaru
Mr. Alex Mwachishi Chilufya
Mr. Guan Fujin
Ms. Mariko Suzuki
Mr. Toshiaki Takahashi
Mr. Hiroyasu Ito
Mr. Lee, Yong-Hoon
Deputy Director Masahiro Tauchi(Pakistan)(Japan)(Ghana)(Indonesia)(Zambia)(China)(Japan)(Japan)(Japan)(Republic of Korea)(UNAFEI)

I. INTRODUCTION

II. USE OF TERMS

This special report is the product of an
intense group workshop called upon to
examine and discuss the relationshipbetween investigation and prosecution as
it pertains to the nineteen countries
represented on the course. To realize thisobjective, it was necessary in each case tolook at the police; to what extent, if at all,prosecutors get involved in investigations;the practical problems faced byinvestigators, police and prosecutors alike;the role played by public prosecutors inovercoming the drawbacks and problems
faced by investigators; and, recommending
possible avenues of circumventing existingand perceived hurdles in the way ofqualitative and effective investigation andprosecution of crime and its offenders. The
countries under review were conveniently
divided into two principal jurisdictions,
namely:(1) countries in which only the police has
investigative authority, and(2) countries in which the police andpublic prosecutors are vested withinvestigative authority.

For purposes of this report, the following
terms shall be construed as hereunder:“PROSECUTOR”: Any person appointed
or designated under the law as a publicprosecutor or one who acts as such on
behalf of the state and whose powers andfunctions include, inter alia, the following:(a) the power of control over thepresentation of a case before court;
and(b) the power of control over thecontinuance or discontinuance ofprosecution.
“POLICE”: Any organization withpersonnel appointed under the law andexercising the power and function of a law
enforcement officer to maintain law andorder in the country. This report focuseson the function of the police as aninvestigator.
“INVESTIGATOR”: Any person who
detects crime and discovers offenders
through the exercise of legal powers.

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RESOURCE MATERIAL SERIES No. 53
III. CLASSIFICATION:
RELATION OF THE PUBLICPROSECUTOR AND THE POLICE
Nations have different institutions
which conduct investigations. In somecountries such as Costa Rica, Ghana, India,
Kenya, Malaysia, Maldives, Nepal,
Pakistan, Singapore, Sri Lanka, Thailand
and Zambia, the authority to investigate
lies with the police. In Cameroon, China,
Indonesia, Japan, Laos, the Philippines
and the Republic of Korea, the role ofinvestigation lies with both the police andthe prosecution.
A. Countries in Which Only The
Police Has Investigative
Authority
1. Costa Ricaa) Organizational structure of
the police and theprosecution
Police: The investigative authority is the
judicial police, which is under the General
Director. The judicial police is under thesupervision of the Internal Affairs Office.
When a crime which is punishable by a fineor less than three years’ imprisonment isreported to the police, all investigation
thereof is conducted by the police. Upon
conclusion of such investigation, the police
submits the results of investigation to theprosecutor.
Prosecution: Public prosecutors belong to
the Public Ministry under the supervisionof the Prosecutor General. Only publicprosecutors can institute criminal
proceedings before the court.
b) Role of prosecutors in police
investigations
When a police investigator submits to theprosecutor the results of his investigation,and if it is an offense punishable withimprisonment, not exceeding three years ora fine, the prosecutor must then require all
relevant witness and suspect statements308

and any other material evidence considerednecessary to be collected by the judicial
police. Once this is satisfied, the prosecutordelivers the dossier to the trial judge.
Similarly, in offenses punishable withmore than three years’ imprisonment, a
police officer on receipt of a complaint
hands over the investigation file to theprosecutor. The prosecutor then draws up
a “formal instruction requirement” which,
together with the case file, he submits tothe examining judge. The latter effectively
takes over the case and conducts thenecessary investigation. With the help of
the judicial police, the collection of evidence
such as witness and suspect statements,
ordering the production and inspection of
public and private documents, and making
available results or reports of forensic
laboratory tests, is done by the examining
judge. The prosecutor only controls thelabor of the examining judge by way of
appeal to the Appeal Court if he does notagree with the proceedings followed by theexamining judge. After this, the dossier ishanded over to the prosecutor for
prosecution.
2. Ghanaa) Organizational structure of
the police and theprosecution
Police: The investigation of all crime is
the responsibility of the police. This power
derives from the Police Service Act No. 350/
70. The police falls under the Ministry ofInterior. The police powers of investigation
include the power to arrest with or without
a warrant, as per section 10(1) of the CPC
Act 30/60 and the power to search with orwithout a warrant. The police is also
empowered to grant bail to suspects.
Suspects who can not be granted bailshould be brought before a court within
forty-eight hours. After the police hascompleted its investigations, it submits thedossier to the prosecutors for prosecution.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Prosecution: The prosecutorial function
is exercised by the Attorney General. That
is to say, all public prosecutors aredesignated by the Attorney General andoperate under the Attorney General’sChambers. The Attorney General is the
Minister of Justice. There are also police
prosecutors exercising the powers ofprosecution on behalf of the Attorney
General. Police prosecutors appear before
Circuit Tribunals, Community Tribunals
and Juvenile Courts (these are subordinate
courts of first instance). All major offenses(1st degree) are triable on indictment
before the High Court. All appeal matters
are handled by state attorneys from the
Attorney General’s Chambers.
b) Role of prosecutors in police
investigations
The police seeks legal advice from the
Attorney General whenever necessaryduring the course of an investigation. Afterthe police has completed an investigation,
a duplicate docket of the case to be tried
on indictment is sent to the Attorney
General’s Chambers. Before the prosecutor
initiates criminal proceedings in court, hestudies the docket. Should there be anyneed for further investigation, he advises
the investigator to do so. The prosecutor
also arranges pretrial conferences. Herehe meets and interviews all parties of acase, with a view to clarifying certain issues
and ascertaining the relevance of
witnesses. This also gives the prosecutora chance to expose and work on weaknesses
in the case before the matter goes to trial.
During investigations, the prosecutor
applies to the court for arrest, search anddetention warrants, which are thenexecuted by police investigators.

3. Indiaa) Organizational structure of
the police and theprosecution
Police: The Central Bureau of
Investigation (CBI) is the premierinvestigation agency of the central
government. The CBI is under the
Ministry of Personnel and Training, headed
by a Director and answerable to the Prime
Minister. The CBI has concurrent
investigative jurisdiction in the Union
Territories. It can also take up theinvestigation of cases at the request of thestate governments. Besides the CBI, there
are state police forces headed by Directors
General of Police, who are appointed by thestate government concerned. The police
has power to initiate investigations ofcognizable offenses itself but require acourt order for non-cognizable offenses.
Other investigative powers, include arrest,
search, seizure and interview suspects andwitnesses.
Prosecution: The prosecution wing in astate is headed by the Director of
Prosecutions who is responsible for theprosecution of cases in the Magistrate’s
Courts. He is aided by the Additional,
Deputy and Assistant Public Prosecutors(Grade I and Grade II), appointed by thestate government. Public prosecutors who
prosecute cases in the High Court are
appointed by the state government fromthe panel of suitable lawyers prepared by
the state government in consultation with
the High Court. Public prosecutors who
appear in Sessions Courts are also
appointed by the state government fromsuch panel in consultation with theSessions Judge. They do not fall under thejurisdiction and control of the Director of
Prosecutions, but rather are responsible to
the District Magistrate.
The prosecution agency does not have anational level body. At the central level,
the Attorney General is the most senior law

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RESOURCE MATERIAL SERIES No. 53
officer of the Government of India withlegal power to address all courts in the
country. Prosecutors appointed by thecentral government appear in High andDistrict Courts in cases involving thecentral government.
b) Role of prosecutors in police
investigations
Though prosecutors have no powers toinitiate and conduct investigations, thepolice seeks legal advice from prosecutors
during investigations. The police respects
and complies with the legal advice given
by prosecutors. However, prosecutors haveno legal authority to direct or supervise thepolice. Prosecutors are employed in the
CBI to provide legal services to theinvestigative body on a daily basis. The
Head of the Legal Division of the CBI iscalled the Legal Advisor and is assisted byAdditional and Deputy Legal Advisors andPublic Prosecutors. These law officers
guide the process of every criminal
investigation by reviewing cases andoffering legal insights into those cases anduseful guidelines on how to proceed withparticular investigations.
4. Kenyaa) Organizational structure of
the police and theprosecution
Police: The National Police is under the
Office of the President. The police initiates
and conducts all criminal investigations.
In the course of these investigations, thepolice consults prosecutors for advice. The
police department is headed by theCommissioner of Police.
Prosecution: The Attorney General is thep r o s e c u t i o n a u t h o r i t y. A l l p u b l i c
prosecutors including police prosecutors,
exercise prosecutorial functions on behalfof the Attorney General. In matters ofprosecution, police prosecutors arecontrolled by the Attorney General.

310b) Role of prosecutors in police
investigations
The prosecutor has no authority to
conduct investigations. The role of theprosecutor is an advisory one. In certain
cases though, the Attorney General can
instruct the Commissioner of Police toinitiate investigations if there is a greaterpublic interest to be served. At theconclusion of each investigation, the police
files the case with prosecutors forprosecution.
Prosecutors study the investigation fileand when necessary request the police tocarry out additional investigations such as
the recording of additional statements from
witnesses, the interrogation of any othersuspect and inspection of certain
documents.
5. Malaysiaa) Organizational structure of
the police and theprosecution
Police: In Malaysia, the Royal Malaysian
Police is under the Ministry of Home
Affairs. The investigation is usually doneby the police. However, only police officersof above the rank of sergeant haveinvestigative powers. In non-seizableoffenses, the investigating officer can only
carry out investigation after he has
obtained an Order to Investigate (O.T.I.)
from the public prosecutor as provided
under section 108(2) of the Criminal
Procedure Code. In carrying out
investigation, the police can detain any
person suspected of committing any
seizable offense for a period not more thantwenty-four hours. If it is necessary todetain the suspect for further investigation,
the police officer must produce the suspect
before a Magistrate’s Court and request anorder of remand for a period of not morethan fourteen days.
Prosecution: The prosecution of criminalcases is a function of the Attorney General.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Public prosecutors exercise this power onbehalf of the Attorney General. Police
officers are also allowed to prosecute as per
section 20 of the Police Act, 1967 andsections 377 and 378 of the CPC.
Prosecution by the police prosecutor is
carried out in the Magistrate’s Courts andthe Sessions Courts. While the police
prosecutor performs prosecution in the
courts, they act on behalf of publicprosecutors.

before trial. The prosecutors can not give
directions to the police on how to conduct
investigation. Once the investigation by thepolice is completed, the case is sent to the
Attorney General’s Office, which can request
the police to conduct supplementary
investigation if necessary. The police has
no legal obligation to follow the request.
However, in practice, the Attorney General’s
advice or request is followed.
7. Nepalb) Role of prosecutors ininvestigations
Public prosecutors do not have the legal
authority to conduct investigations, savefor police prosecutors who haveinvestigative powers by virtue of the police
office. Public prosecutors, at best, advise
and instruct police investigators in thelegal efficacy and expediency of carryingout investigations. Thus advice relates tocases brought to the notice of prosecutors
during the investigation stage and thosecases whose files have been submitted tothe prosecution office for study with a view
to instituting criminal proceedings.
6. Maldivesa) Organizational structure of
the police and theprosecution
Police: The police is under the Ministryof Defense and National Security. The
police conducts investigation and canarrest suspects, as well as search and seize
on its own decision without warrants.
Prosecution: The prosecutors are underthe Attorney General. The Attorney
General is appointed by the President. The
other prosecutors (the State Attorneys) areappointed by the Office of the President.
b) Role of prosecutor in police
investigations
Prosecutors do not conduct investigations.
They do not meet suspects or witnessesa) Organizational structure of
the police and theprosecution
Police: The Police Headquarters areunder the Ministry of Home Affairs. The
police is authorized to conduct
investigation, detect suspects, manage
crime scenes and collect physical evidence.
The police can arrest a suspect with orwithout warrant and can detain for a periodof twenty-four hours without recourse to
the court or the prosecutor. However, thepolice should within that time bound (i.e.,twenty-four hours) produce the accused
before the court for additional time, if
needed for further investigation. If thecourt also deems necessary that theinvestigator needs additional time, thenthe court may permit him to detain asuspect for an additional period of twentyfive days. If the court feels that it is notnecessary to detain a suspect, he will
immediately be released. The investigating
police officer should take the statementsof witnesses and other third parties in thepresence of the public prosecutor. Whenthe investigating police officer concludes
his investigation, the results should besubmitted to the public prosecutor to frame
the charge-sheet.
Prosecution: The prosecutorial function
is independently exercised by the Attorney
General of the Kingdom of Nepal, which
he can delegate to his subordinate officers
too. Thus in Nepal, except for the Attorney

311

RESOURCE MATERIAL SERIES No. 53
General, no any other agency (neither theinvestigator nor the victim) can prosecute.
The Attorney General is appointed and canbe dismissed by His Majesty’ the King upon
the recommendation of the Prime Minister.
b) Role of prosecutors in police
investigations
Though the Nepalese public prosecutor
is not directly involved in investigating acrime and his participation during theinvestigation is limited, as and when theinvestigating police officer submits the caseto the public prosecutor, before putting it
forward to the court, the public prosecutor
can direct or instruct the investigating
police officer to collect some more evidence
or interrogate someone, if necessary. The
investigating police officer should obey
such directions or instructions.
8. Pakistana) Organizational structure of
the police and theprosecution
Police: The Federal Police is under the
Ministry of the Interior. The Provincial
Police comes under the Provincial Home
Department.
The investigation of crime is the
responsibility of the police. Like in mostcommon law countries, the police isempowered to arrest without a warrant forcognizable offenses and produce sucharrestees before the court within twentyfour hours. Thereafter, only the court has
the power to sanction further remand ofan accused person by issuing an extended
remand warrant of up to fourteen days.
Prosecution: The Attorney General is theultimate prosecution authority. He is
appointed by the President on therecommendation of the Prime Minister, andhe is also a cabinet minister of the federal
government.
The Advocate General is the Head of
Prosecution at the provincial state level,

312

and public prosecutors are appointed by theprovincial government. The Attorney
General and his deputy represent thefederal government in the Supreme Court.
The Advocate General and the Assistant
the Advocate General appear in the High
Court on behalf of the government. In
District Sessions Courts and Magistrates’
Courts, the Public Prosecutors and District
Attorneys represent the government.
b) Role of prosecutors in police
investigations
Public prosecutors do not investigate
crime, but advise the police on better legal
approaches to investigations. They canrequest the police to do supplementary
investigation when evidence is lacking ina case. The prosecutors do not control orsupervise police investigations.
9. Singaporea) Organizational structure of
the police and theprosecution
Police: The police is under the Ministryof Home Affairs. The police conducts
investigations, and has power of arrest withor without a warrant for non-seizable andseizable offenses. It can also search andseize property upon a warrant from thecourt.
Prosecution: Public prosecution is underthe Attorney General’s authority. The
Attorney General, who is the Public
Prosecutor, is appointed by the President
on the advice of the Prime Minister. The
Deputy Public Prosecutors are appointed
by the Legal Service Commission or the
Senior Personnel Board. As for police
prosecutors, they are appointed by thepolice force.
b) Role of prosecutors in police
investigations
After the investigation by the police iscompleted, the case is sent to the Attorney

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
General’s Chambers. The prosecutors do not
conduct investigations by themselves, but
supervise and control the process ofevidence collection by the police. This isdone by giving advice and directions to thepolice on the conduct of investigations. Afterinvestigations are completed and when thecase is ready for trial, the prosecutors may
interview witnesses prior to going to court
to establish the credibility of the witnesses
or to clarify the issues. Should theprosecutors feel that the investigation isincomplete, they can return the case file topolice pointing out areas requiring attention
and what needs to be done.
The police investigator and theprosecutors maintain a good working
relationship.
10. Sri Lankaa) Organizational structure of
the police and theprosecution
Police: The police is under the Ministryof Defense. It exercises all powers ofinvestigation. The police can arrest anddetain a suspect up to twenty-four hours
under a warrant issued by the court. Thisdetention can be extended up to fifteen
days.
Prosecution: The Attorney General is thehead of all prosecutions. The Attorney
General is responsible for initiating andconducting all public prosecutions.
Prosecutors fall under the Ministry ofJustice. The Attorney General is appointed
by the President.
Police prosecutors are answerable to the
Attorney General in all matters affecting
their prosecutorial work.
b) Role of prosecutors in police
investigations
State Counsels are prosecutors in the
Attorney General’s Department. They areauthorized to direct or supervise
investigation. State Counsels have thepower to advise the police at any stage ofcriminal inquiry. Further, State Counsels
can require the police to carry out further
investigations into specific areas of a caseonce a review of the investigation file has
exposed deficiencies in evidence collection.
11. Thailanda) Organizational structure of
the police and theprosecution
Police: The police falls under the
Ministry of Interior. The power toinvestigate all criminal offenses is
exercised by the police. Section 121 of theThai CPC confers this power on police
officials. Police are also empowered tocarry out arrests, searches and seizuresand detain suspects by themselves. They
have the power to issue warrants bythemselves for purposes of search andarrest when necessary. The police candetain a suspect for up to three days prior
to a court appearance. The court can allow
the extension of remand warrants forintervals of twelve days up to a maximumof eighty-four days.
Prosecution: The Attorney General is therepository of the prosecution function. He
falls under the direct supervision of thePrime Minister. He is assisted by four
Deputy Attorney Generals, the Director of
the Criminal Litigation Department and the
Directors General of regional departments.
The public prosecutors under the Attorney
General’s Office are career professionals.
b) Role of prosecutors in police
investigations
The prosecutors are not involved inpolice investigations. They wait for theinvestigation report from the police. The
police inquiry file gives the prosecutors achance to deliberate and assess theevidential value and sufficiency of theinvestigation before deciding whether toprosecute or not.

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If the evidence is insufficient, they thenrequest the police to do further
investigations or to send witnesses to themfor further questioning.
12. Zambiaa) Organizational structure of
the police and theprosecution
Police: The police department is under
the Ministry of Home Affairs. The police
is the main investigative security organ of
the state. Police officers are empowered
both under the Police Act and the CPC toeffect arrest with or without a warrant, toconduct search and seizure, and to detain
suspects in police custody for a period oftwenty-four hours.
Detained suspects should be produced
before court within twenty-four hours forthe judicial authorities to determine thelegality of an arrest and subsequent
detention. However, section 33 of the CPC
allows the police to detain a suspect beyond
twenty-four hours for purposes of aninvestigation if the circumstances do notmake it practicable to produce him before
court within twenty-hour hours, but may
do so as soon as it is practicable.
Prosecution: The Director of Public
Prosecutors (DPP) is the prosecuting
authority. He is independent of the
Attorney General but comes under the
Ministry of Legal Affairs. He is appointed
by the President and enjoys aconstitutional tenure of office equivalent
to a puisne judge of the High Court.
State advocates and police officers areappointed by the DPP to act for him as
public prosecutors pursuant to sections 86
and 87 of the CPC.
b) Role of prosecutors in police
investigations
Public prosecutors are not investigators
either by law or practice. After the police
has done its inquiry, it forwards the inquiry

314

file or docket to the prosecution office forstudy and advice.
Prosecutors may suggest to police
investigators from a legal point of view how
the inquiry should be conducted and what
elements of evidence to look for in order tosatisfy the offense. The police usuallycomply with the advice of prosecutors.
A prosecutor must satisfy himself thatthe investigation is thorough before he canproceed to court.
B. Countries in Which the Police andProsecutors Have Investigative
Authority
1. Cameroona) Organizational structure of
the police and theprosecution
Police: The public security police, thegendarmerie and the judicial police
constitute the main investigative agencies.
The gendarmerie falls under the Ministryof Defense and is responsible forinvestigations in the rural areas, where
police structures are in existence orinadequate. The public security police falls
under the National Delegation of Internal
Security, which is answerable to the
Republican President.
In the conduct of investigations, thepolice and gendarmerie act as judicial
police officers and assist the judiciary inthe control of the State Counsel. Generally
the judicial police is competent toinvestigate felonies and complex
misdemeanors nationwide and participatesin international investigations. It should
be noted that the control and supervisionof the judicial police in administrative
matters such as promotions, transfers anddisciplinary matters revert to thesupervisors within the police andgendarmarie command structures.
Prosecution: Prosecution is under the
Legal Department. The Minister of Justice
exercises overall control over the Legal

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
Department. The head of prosecution iscalled the Procureur General and assisted
by Advocate-Generals, Substitute-Generals
and Attachés. Only the public prosecutors
can initiate and conduct public prosecution
for and on behalf of the state.
b) Role of prosecutors in police
investigations
Under the Ordinance on Judicial
Organization, the State Counsel has
absolute power to conduct personallyinvestigations for all offences. However,in practice, he investigates in relation toserious offences such as murder andassassinations, particularly sensitive casesor those involving senior officials.
Where a crime has been committed, thevictim, witness or any person having
knowledge of the circumstances may reportthem orally or in writing either to the State
Counsel or any other investigative agency.
The State Counsel upon receipt of the crime
report forwards the same to the competent
investigative agency with specificinstructions as to the manner in whichinvestigations should be conducted. If
dissatisfied with the conduct ofinvestigations, he may order fresh orcomplementary measures.
Basically, there are two types ofinvestigations, that is, preliminary
investigation and flagrante delicto
investigations. Where a suspect is arrested
in relation to a case of flagrante delicto, thepolice shall conduct him to the nearest
State Counsel within twenty-four hours.
The suspect may only be detained
thereafter by order of the State Counsel.
The said order is valid for twenty-fourhours and may be extended thrice.
Thereafter, if investigations are notcompleted the suspect must be released.
The State Counsel has wide powers toorder any measures necessary during
investigation to enable him to obtainevidence that will contribute to the
manifestation of the truth. It is in thisregard that warrants of arrest, search,
remand, etc., are made his prerogative.
Investigation officers, (i.e., the police)
execute these warrants under thesupervision and control of the State
Counsel.
2. Chinaa) Organizational structure of
the police and theprosecution
Police: The police, under the Public
Security Organ, is responsible for thegeneral investigation of crime and exercise
powers of detention, arrest andinterrogation.
Prosecution: Public prosecutors fallunder the People’s Procuratorates, which
are the state organs of legal supervision.
The Procurator General of the Supreme
People’s Procuratorate is elected by the
National People’s Congress. The publicprosecutors are appointed and dismissedby the corresponding level Standing
Committee of the People’s Congress. The
prosecution performs its duty
independently.
b) Role of prosecutors in police
investigations
The People’s Procuratorates are
responsible for prosecutorial work;
approving arrest, investigating cases ofcorruption and bribery in public offices andinitiating public prosecution, as per CPL
Article 3. In other words, public
procurators, like the police, have theauthority to interrogate suspects, interview
witnesses, search, seize, inspect, examine,detain and arrest suspects. When the police
wishes to have a person arrested, it mustseek approval from the procurators.
Further, the law obliges the police to submit
itself to the supervision of the procurators
vis-à-vis police duties. This means thatprocurators have the power to require thepolice to file a case for investigation, send

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RESOURCE MATERIAL SERIES No. 53
an officer to participate in the discussionof a major case investigated by the police
or demand that there be a re-inspection or
re-examination of evidence in matters ofcriminal investigation (CPL articles 66, 87
and 107). However, in cases of corruption,bribery and dereliction of duty committed
by state personnel and other major crimesof abuse of official powers, procurators filethe cases for investigation and subsequent
prosecution.
In reviewing the case that requires
supplementary investigation, theprocurator may return the case to the
Public Security Organ for supplementary
investigation and may also investigate on
its own.
3. Indonesiaa) Organizational structure of
the police and theprosecution
Police: The State Police is a componentof the Indonesia Armed Forces and is led
by the Commander-in-Chief of the Armed
Forces. The State Police is responsible forthe investigation of general crime. Article
7(1) of Act No.8/1981 gives power to thepolice to receive reports and complaints
about crime and take steps to establish theexistence of an offense and identity of an
offender. This includes the power of arrest,
search, detention, interrogation, andtermination of investigation.
Prosecution: The Prosecution Service isheaded by the Attorney General who is
responsible for the prosecution of all
criminal cases. Prosecution is under the
Attorney General’s Office. The Attorney
General is a member of cabinet.
b) Role of prosecutors in police
investigations
The public prosecutor has investigative
power in corruption and anti-subversion
offenses (Law No. 3 of 1971 and Law No.11/
Pnps/ 1963). These laws give wider powers

316

of search, seizure, interrogation anddetention to prosecutors. Besides theinvestigation by prosecutors themselves,the public prosecutor exercises a great dealof control and influence over police
investigations. For instance, theinvestigator shall inform the publicprosecutor about the commencement of theinvestigation; the public prosecutor shall
grant extension of remand to theinvestigator for completing theinvestigation; the public prosecutor shallgive instructions to the investigator and theinvestigator shall complete the case bundle
according to the instruction of the publicprosecutor; and if the investigator stops aninvestigation, he shall inform the publicprosecutor, and, likewise, if the prosecutor
stops prosecution, he shall so inform theconcerned investigator.
4. Japana) Organizational structure of
the police and theprosecution
Police: The police of Japan consists of the
National Police Agency and the Prefectural
Police Headquarters. The National Police
Agency is supervised by the National Police
Safety Commission, and the Prefectural
Police Headquarters is supervised by thePrefectural Police Safety Commission.
Criminal cases are mainly investigated by
the police which belongs the Prefectural
Police Headquarters. The National Police
Agency conducts coordination between the
Prefectural Police Headquarters. The
police has investigative powers of all crimes
and exercises such incidental powers as
arrest, search, seizure and interrogation.
Prosecution: Public prosecution is under
the Ministry of Justice. The Public
Prosecutor General is the chief law officer
and prosecution authority.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSEb) The role of prosecutors inpolice investigations
The public prosecutor has concurrent
investigative powers with the police. In
practice, the police does the initialinvestigation, after which the case with
documents is sent to a public prosecutor’s
office. In the same way, an arrested person
must be sent to a public prosecutor within
forty-eight hours. The public prosecutor
would then interrogate the suspect and, if
necessary, request police to carry out
certain complementary investigation to
obtain relevant evidence. Publicprosecutors also choose to interview thevictims of crime and witnesses before
deciding whether to prosecute or not.
Ordinarily, particularly in serious offenses,
public prosecutors get involved from thestart. The police report to the publicprosecutor concerning the investigation
and, together, the police and the publicprosecutor plan the investigation strategy,
the evidence required, and when to initiatecompulsory investigation. In cases
initiated by the public prosecutors office,public prosecutors conduct independent
investigation. The PPOs have a criminal
investigation division of specialized
investigators, mostly in economic crimes.
5. Republic of Koreaa) Organizational structure of
the police and theprosecution
Police: The Korean National Police isunder the National Police Agency (NPA), an
independent agency of the Ministry of Home
Affairs. The National Police Commission(NPC) conducts administrative supervision
over the police. Under the NPA, there are
Provincial Police Agencies in each province.
Police stations are administered through the
PPAS. The police serves as investigative
assistant to the public prosecutor, eventhough it may in practice initiate theinvestigation of most crimes. The Criminal

Procedure Code vests the power to initiate
and conclude the investigation of crime in
the public prosecutor.
Prosecution: The Public Prosecutor’s
Office belongs to the Ministry of Justice.
The Prosecutor’s Office is an independent
entity comprising the Supreme Public
Prosecutor ’s Office, five High Public
P r o s e c u t o r ’s O f f i c e , t w e l v e P u b l i c
Prosecutor’s Offices and their branches,
each corresponding to a respective court.
All public prosecutors are qualified
attorneys.
b) Role of prosecutors in police
investigations
As the law vests the power ofinvestigation in the public prosecutor, it is
the responsibility of the public prosecutor
to take a lead in initiating and directing
the conduct of criminal investigation.
Consequently, the police and special
investigative agencies conduct
investigations in accordance with thegeneral standard and/or special direction
issued by the public prosecutor, andnecessarily, transfer all cases to the pubic
prosecutor for the conclusion of aninvestigation.
In short, the public prosecutor has theauthority and duty to supervise judicial
police officials. The police must request the
public prosecutor for issuance of a warrantof arrest or detention by a judge.
It is noteworthy that in practice mostpublic prosecutors are enthusiastic to dotheir own probes into serious crimes. Casesof organized crime, white collar crime, drug
offenses, environmental offenses,
corruption, are mainly investigated andprosecuted by the public prosecutors
themselves.

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6. Lao People’s Democratic
Republica) Organizational structure of
the police and theprosecution
Police: The police is under the Ministryof Interior. The Minister of Interior is Headof the police. He is appointed and dismissedby the Prime Minister. The police has thepower to investigate crime. This power
extends to arrest, search, seizure, and theinterrogation and interview of suspects andwitnesses. However, the police must obtaina warrant from the court or a prosecutor
in order to effect arrest, search or seizure.
Prosecution: The Attorney General
Prosecutor is the head of public prosecutors.
He is appointed and dismissed by the
National Assembly, on recommendation of
a Standing Committee. The Attorney
General Prosecutor appoints and dismisses
the chief of public prosecutors at provincial,prefectural and district levels.
b) The role of prosecutors inpolice investigations
Public prosecutors have the authority toinitiate investigations of all crime. They
have the power to arrest, search, seize andinterrogate suspects by themselves. They
can also issue warrants of arrest, search,
seizure and detention. Public prosecutors
can take up a case from the police andconduct supplementary investigation.
When the police get information about
crime, they normally report to prosecutors
about the case within forty-eight hours. In
practice, prosecutors only conduct
investigations of corruption by themselves.
The prosecutors work through the police,ordering them to execute warrants ofarrests, search, seizure and detention.
Public prosecutors, however, work very
closely with the police and conduct joint
investigations in cases of corruption.

318

7. The Philippinesa) Organizational structure of
the police and theprosecution
Police: The police is under the Departmentof the Interior and Local Government(DILG). A police officer is appointed anddismissed by the Head of DILG.
The authority to investigate crime isvested in the police. This includes thepower to interrogate suspects, interview
witnesses, search and seizure and arrest
without warrant.
Prosecution: The prosecution is under the
Department of Justice. Public prosecutors
are appointed and dismissed by the
President of the Philippines on therecommendation of the Secretary of Justice.
When a complaint is submitted to a
public prosecutors office, the publicprosecutors also conduct investigation,
which they call “preliminary investigation”.
During the preliminary investigation,
public prosecutors have the right tointerrogate the suspect and interview
witnesses, but they do not have the rightto execute other investigative measures.
The police and the public prosecutors caninvestigate all kinds of cases, except graft
and corrupt crime.
b) Role of prosecutors in police
investigations
Prosecutors have no hand in theinvestigation of the police. In thePhilippines, the police and the publicprosecutors office belong to different
ministries, and, thus, they work
independently. Once a case is investigatedby the police, it will be the only
investigating agency, and the publicprosecutor is not involved in the case.
Public prosecutors do not conduct
supplementary investigation bythemselves, and cannot take over the casefrom the police.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
IV. DRAWBACKS AND PROBLEMSOF INVESTIGATIONS CONDUCTEDBY POLICE INVESTIGATORS
Investigation into the breach of criminal
laws plays an important and primary rolein achieving justice and fair play in every
society.
The group after studying therelationship between the police and theprosecution during investigation has
identified some drawbacks and problems
in police investigation.
A. Inappropriate Procedural
Approach
Inappropriate procedural approaches
include where investigators engage inillegal investigations such as arresting or
detaining suspects without a legal basis or
beyond the legalized period and the use ofexcessive force on suspects when seizing
physical evidence and obtaining thestatements. When the latter happens, suchstatements are rejected by the court, withthe consequent result of not obtaining aconviction in that particular case. This
happens in countries where statements
taken by the police are admissible in the
court.
B. Delay in Investigations
Delay of investigation could be due todifferent reasons. In Japan, sometimes forvery important and sensitive cases, thepolice takes a long time. Moreover, publicprosecutors also are in the picture and in
the collection of some important evidence,delay can happen. In the Republic of Korea
sometimes when suspects have moved toanother place, the cases are transferred
and this can cause delay in investigation.
Delay, for example, occurs in somecountries in a case where two or moresuspects are involved but the police couldarrest only one. After the maximum period
of detention expires, the suspect is
produced before the court which places him

in a detention center or judicial custody. Insuch cases, the police can request the court
for adjournment of trial till the othersuspects are arrested. In this situation,
the investigation can be delayed. This way
the justice for victim as well as defendantis delayed. This situation is sometimes
justified, but sometimes due to other rush
work, the police becomes lazy.
Delay in investigation could be due tothe following reasons:(1) Excessive work load of investigators
at a given time which may either be
due to an increase in crime or ashortage of manpower. This ismostly in countries whereprosecutors do not assist ininvestigations. When suchsituations exist, efficient andeffective investigations are
sacrificed. In some instances suchdelay leads to the discharge of theoffenders in the court.
(2) In some instances, the police
initiates investigation very late, andconsequently, either the suspectescapes or implements used in thecrime are destroyed.
(3) The frequent deployment andtransfer of police officers are causes
which contribute to delays ininvestigation by the police. An
officer does not undertake his careerat one station or in one unit. Whenit happens, discontinuity is createdin the investigation of cases whichthat officer may be handling.
C. Inadequate Legal andInvestigative Knowledge
1. It was realized that some investigatorslack adequate knowledge. The problem isthat during investigations, they at times do
not understand correctly who should be thetarget of the investigation, what crime theoffense constitutes, what evidence to lookfor, and how to interrogate the witnesses

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RESOURCE MATERIAL SERIES No. 53
and the suspects. The training offered tothem during their recruitment is not jobspecific and is usually very short (six months
or, at most, twelve months). They, therefore,
become ill-equipped for the job that theytake on.
In some situations, the investigation is
not fully carried out on alibi, the search is
not fully conducted for the important
evidence, the statements of witness as wellas the accused person are not recorded
correctly, and there may be contradictions
among the evidence, which the investigator
may not be able to notice due to the lack ofadequate legal and investigativeknowledge.
2. Due to advancements incommunications and the introduction of theInternet, organized criminals use themodern techniques for which theinvestigators, police and prosecutors are
not much trained. Consequently, they facedifficulty in completing the investigations
into offenses committed by use of suchmodern technologies.
D. Lack of Coordination between the
Police and the Prosecution
In studying the system of countries, it
was observed that the police and theprosecution are under different
departments. The police and theprosecution sometimes lack coordination
on investigative issues. The approach ofpolice and prosecution are sometimes
different. Sometimes the prosecutor has adifferent idea necessary for achieving goodinvestigation results. However, due to thelack of coordination, it can not be
communicated to the police.
In some countries, prosecutors only get
to know of cases after the investigations
have been completed and they are asked
to prosecute the cases. It may be too lateeven for the prosecutor to suggest for
additional investigations for the collectionof additional evidence. Sometimes the320

police does not convey the necessary
information to the prosecutor, and, in suchcases, the prosecutor can not advise at theappropriate time.
E. Lack of Forensic Science
Facilities
In some countries where the forensic
laboratories for testing fingerprints, firearms, DNA, etc., can be conducted are few
or situated at far distances. As a result, in
the investigation of such related cases, thematerial evidence may arrive very late,thereby impairing the early completion of
an investigation. Due to the lengthy
procedures associated with scientificevidence, the police tries to avoid its use
and rely on easy ways to collect evidence.
F. Political/Governmental Influence
In some countries where the police iscontrolled by the executive, politicalinfluence is exerted in some cases
investigated by the police. These influences
may come in the course of investigations,when high-ranking government officials
and politicians have a direct or indirectinterest in the case.
V. ROLE PLAYED BY
PROSECUTORS IN OVERCOMING
THESE DRAWBACKSThe group identified that prosecutors
play diverse roles in solving the problems
and drawbacks identified above. Howeverthese roles depend on the enactments
establishing the police and the prosecution
and the commitment to work together toachieve criminal justice in their countries.
The group members suggested thefollowing roles which prosecutor could playin overcoming these drawbacks.
A. Suggestions for Inappropriate
Procedural Approach
In such cases, the prosecutor should
immediately study an investigation and107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
suggest to the police to undertake theinvestigation in the right way according tol a w. I n c a s e s w h e r e e v i d e n c e i sinadmissible in court due to illegal
investigative procedure, the publicprosecutor should tell the police that theevidence is inadmissible and request themto look for other evidence. In serious cases,
the public prosecutor should release thesuspect and drop the case. Also prosecutor
can recommend for administrative action
against the police officer.
While studying the systems as to thisissue, it was observed that in Japan
prosecutors carefully inquire and interview
the suspects and witnesses regardingwhether excessive force or threats andother mental pressures were used inseizing the physical evidence or obtaining
the statements by the police. They also look
into the admissibility of evidence, and ifthey feel that the evidence will be foundinadmissible, the prosecutors will instruct
the police to look for other evidence. In
serious cases, the prosecutor releases thesuspect and drops the case. In the Republicof Korea, the prosecutors have to inspect
the police detention facility regularly. If
any illegality by police is discovered, they
release the suspects or order the police tosubmit the case to the prosecutors
immediately. Similarly, in China, when theprosecutors learn of an illegal investigation
through a complaint by the victim, a Bill isissued to the police demanding correctionof the illegality. In Indonesia, prosecutors
play role in cases of torture by asking thepolice to release the suspects as soon as
possible. They ask the police to release andalso recommend for action against thepolice.
In countries like Ghana, India, Pakistan
and Zambia where prosecutors have nopower of investigation, senior police officers
make frequent visits to the police detention
facility, and if any suspects are found tohave been held beyond the legal detention
time, their release is ordered. In somecases, the investigation is also transferred
to another police officer.
B. Suggestions for Delays in
Investigation
The group has suggested as under toavoid delays:
1. For cases of public interest, theprosecutor can ask the senior police officers
to reduce the work load of a particular
officer so that he can complete theinvestigation of such cases.
2. In a system where the prosecution isin a position to know the progress of a caseor receive complaints from the public withregard to delay of investigation, theprosecutor can ask the police to report on
the progress of an investigation form time
to time and also to explain the reasons forany delay. The prosecutor should give
instructions and guidance in order to
expedite the investigation.
In those countries where the prosecutor
has no legal authority to know the progressof an investigation, it is suggested thatsome legal provision be made so that thisis possible.
3. Senior police officers should avoid
transferring any investigation officer who
is involved in an important investigation.
The prosecutor may also suggest that thesenior police officers to stay such transfer
till the completion of the pending
investigation.
C. Suggestions for Inadequate Legaland Investigative Knowledge
1. Regarding inadequate knowledge ofinvestigation and law, it was suggested theprosecutors be allowed to give from time
to time guidance to the police in each case.
Also it was suggested that on-the-job
training and short-term refresher courses
be arranged where prosecutors are allowed
to give lectures as to how cases are

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RESOURCE MATERIAL SERIES No. 53
conducted in the court and value of
evidence.
2. In consideration of advancements intechnology, special training programs
should be introduced for the police and theprosecutors. In this case, immediatetechnical help can be taken by companies
which are producing such technology. The
opinion of such experts can be sought
during investigation. The police and theprosecution departments should haveexperts on computers.
D. Suggestions for Lack of
Coordination between the Police
and the Prosecution
It was suggested that the police and theprosecution should have regular and ad hoc
meetings from time to time. During suchmeetings, the police can discuss the
position of pending investigations andprosecutors can advise on these so that theinvestigation can be completed in a correct
and timely manner. In important cases,
the police and the prosecutors should havemeetings during the investigation andbefore the indictment for such cases,
wherever needed.
In countries where prosecutors have arole during investigation like China, Japanand the Republic of Korea, such meetings
are often held. But those countries where
there is no such provision (though
unofficially they might be holding meetings
but not often), it is suggested that a system
be initiated where the police and prosecutor
have regular meetings.
E. Suggestions for Lack of Forensic
Science Facilities
Regarding shortage of forensic sciencefacilities and laboratories, the investigatorshould prioritize the collection of evidence.
Those which are important and require
technical opinion regarding fingerprints,
chemical examinations, DNA testing,firearms report, etc., should be completed
as early as possible. In such cases, the322

prosecutors should also give guidance toinvestigators in identifying the importantscientific evidence.
It is also suggested that more forensic
science laboratories be equipped, since insome countries there is only one.
The prosecutors should also advise thepolice about the importance of scientificevidence like blood tests in murder cases,
or in cases where firearms are used,ballistic tests.
F. Suggestions for Political/
Governmental Influence
To avoid political pressure in seriousorganized or corruption cases against
politicians and senior civil servants, theinvestigator should try to maintain thesecrecy of evidence. After the arrest of thesuspect, they can give proper information
to the media so that they can get support
from the public and can avoid suchpressure.
Where prosecutors have the authority toinvestigate, they should give instructions
to police for proper investigation. In spiteof these instructions, if the police is still
under political pressure, the prosecutors
should take over the investigation.
Both the police and public prosecutors
should show professionalism and act
according to the law.
It is suggested that an agency beestablished which is free from influence
from the executive and which has theauthority to call case papers from police,
when it feels that some politicalinterference is involved. In such cases, it
should take immediate legal action against
such illegal influence.
VI. INVESTIGATION INITIATED BY
PUBLIC PROSECUTORSIn Cameroon, China, Indonesia, Japan,
Laos, the Philippines and the Republic ofKorea where prosecutors also have theauthority to initiate the investigation of

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
cases, they do not investigate all the cases
in practice.
In China, according to Article 18 of the
Criminal Procedure Law of the People’s
Republic of China, “with regard to thecrime of corruption and bribery, the crimeof dereliction of duty committed by state
personnel, the crime of illegal definition,
extorting confession by torture, retaliationand framing and illegal search to infringeon citizens’ rights of the person committed
by state personnel who take advantage ofthe functions and powers and the crime of
infringement on citizens’ democratic rights,
peoples procuratorates (publicprosecutors)” should file such criminalcases for investigation.
In Japan, Article 6(1) of the Public
Prosecutors Office Law states “Publicprosecutors may investigate any criminal
offense,” and Article 191(1) of the Code of
Criminal Procedure states “A publicprosecutor may, if he deems necessary,investigate an offense himself.” In practice,
however, they investigate major corruption
tax evasion or bankruptcy cases, etc.
In Indonesia, the prosecutors investigate
corruption and subversion cases. Moreoverin subversion cases, the prosecutor is
assisted by the police and the army forsummoning witnesses and arresting
suspects.
The Criminal Procedure Code of the
Republic of Korea vests the power of theinitiation and conclusion of criminal
investigation solely on the publicprosecutor. The police and other special
investigative agencies serve only as
assistants to the public prosecutor andshould conduct investigation in accordance
to the general standard and/or special
directions issued by the public prosecutor.
Most cases involving serious offenses suchas organized crime, white-collar crime,
corruption, drug offenses andenvironmental offenses are handled by the
public prosecutor from the beginning.

In Cameroon, Laos and the Philippines,
public prosecutors have authority toinvestigate the case, but in practice mostcases are investigated by the police under
the supervision of prosecutors.
In countries where prosecutors initiate
investigation, it was realized that due tothe effective role of prosecution, there arecertain benefits which lead to a goodinvestigation. As prosecutors haveadequate legal knowledge as well as
conversant in legal interpretation, they
prepare good cases for indictment. Theirability and experience have been deemed
as a benefit for the law enforcement system
in combating crime. Earlier involvement
by prosecutors in investigation, guarantees
a successful prosecution and conviction.
VII. PROBLEMS IN
INVESTIGATIONS INITIATED BY
PUBLIC PROSECUTORS
In countries where prosecutors have theauthority to initiate the investigation suchas in China, Indonesia, Japan and theRepublic of Korea, the group workshop has
found some problems faced by the publicprosecutors, namely:
A. Limited Number of Prosecutors
In most prosecution offices, there is alimited number of prosecutors andassistant officials, especially for initiating
the investigation. As it has been realized,
initiating the investigation has been timeconsuming since the public prosecutors
have to conduct investigation bythemselves (such as collecting evidence
interrogation of the suspects andwitnesses, search and seizure, etc.). At thesame time, the number of cases that mustbe handled has been increasing. This
problem is more serious when theprosecutor ’s office has to deal withprosecution in the court and supervise thepolice investigation.

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B. Difficulty in Finding Clues andCredible Evidence of Crime
The cases committed in secrecy like
corruption and bribery are difficult to
detect, as there is no direct victim.
Evidence is hard to come by due to thesecrecy surrounding these transactions.
In such cases, public prosecutors rely on
the statements of witnesses and theconfession of the suspects. However, thesuspects tend to deny the facts and thewitnesses tend not to cooperate with the
public prosecutors in the trial stage.
C. Media Publicity
When competition for giving news starts
in the media, it becomes difficult to keep
the secrecy of an investigation, and once
information is leaked, the related persons
and suspects do not cooperate in theinvestigation, the suspects and thewitnesses could escape and also the defense
councel of suspects becomes more active,
thereby making investigation difficult. In
sophisticated cases, the suspects and thewitnesses destroy the evidence, whichfurther frustrates proving the offense.
VIII. SOLUTIONS TO THE
PROBLEMS IN INVESTIGATIONINITIATED BY PUBLICPROSECUTORS
In view of the problems in investigations
initiated by public prosecutors, the group
workshop identified some possible
solutions, namely:
A. Suggestions for Limited Numberof Prosecutors
1. Investigation of Selected Cases
To overcome the problem of overwork, it
can be suggested to the appropriate
authority that the number of prosecutors
be increased. However, while it is difficult,the investigation of selected cases like thoseof corruption against civil servants,
politicians, subversive activities, cases of324

national interest, etc., could be given
priority.
2. Temporary Attachment System
If in some offices the work load is tooheavy, some prosecutors from other offices
could be temporarily attached to assist.
3. Cooperation between
Prosecutors with the Police andOther Investigative Agencies
In view of the limited number ofprosecutors, when initiating andconducting the investigation of cases,
public prosecutors can ask for cooperationfrom the police if necessary. There may be
relevant cases which are found as offshootsof another investigation initiated by the
public prosecutors and which can beinvestigated by the police. In such cases,
the public prosecutors can ask the police
to investigate such offshoots. It issuggested that when prosecutors needsome help, the police should extend
immediate cooperation.
As in China, Indonesia, Japan and theRepublic of Korea, in special cases of taxes,
customs, security transactions, the officersof respective department give permanent
cooperation. In Japan, some tax officers
are permanently attached to the special
investigation department of theprosecutors offices.
B. Suggestions for Difficulty Finding
Clue and Credible Evidence
Public prosecutors should have theirown sources of information, which canprovide clues to cases. The publicprosecutors can also ask the public to assist
in giving information. While investigatingother cases and examining relevant
documents, public prosecutors must try tofind clues of other big offenses. Publicprosecutors should also pay attention to thecorrespondence from the public relating to
information on cases.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
In Japan, public prosecutors can obtain
information relating to all crimes directlyfrom the public or government officials
through all means of communication,complaints and so on. In China, there is acriminal report center in each public
procuratorate office, where they receive
information about crimes from the public.
This information is subsequently sent to
the most appropriate departments. In
Indonesia, there is “P.O. Box 5000” forreceiving such information.
While recording the statements of thewitnesses and suspects, public prosecutors
have to obtain credible and concrete
statements, which will support aconviction.
C. Suggestions for Media Publicity
When the media competes for
information, it becomes difficult for
prosecutors to conduct an investigation. In
such cases, the secrecy of information andinvestigation must be maintained.
The senior officers of public prosecutor’s
offices or the public relations department
should brief the press from time to time sothat the media does not publish articles
based on mere speculation or conjecture.
IX. CONCLUSION
From the study and discussion of thecriminal systems of different countries, it
was gathered that for any criminal justicesystem to succeed, each pillar of criminal
justice administration has to play animportant role. The group workshop
studied the role of prosecution andprosecutors in investigation. It wasobserved that prosecutors have a twofold
role in investigation and prosecution.
These roles are commonly established in
the criminal procedures of each country,
but tend to differ from country to country.
During the study of the criminal systemsof those countries where prosecutors havean authorized role in police investigationor where they have the authority toinvestigate, the results of investigation aregood and the conviction rate are higher.
Conversely, in those countries whereprosecutors are not authorized toinvestigate and do not have any role during
investigation, the conviction rate iscomparatively lower.
The other benefit can be that prosecutors
could give reasonable instruction or advice
to police, keeping in view their experienceand knowledge. This also contributes toshortening the time period for theinvestigation.
As discussed in the proceeding
paragraphs, it was acknowledged thatinvestigation by prosecutors is very
beneficial due to their adequate knowledgeof law and legal interpretation. This
experience improves the standard ofinvestigation.
It is noteworthy that investigation andprosecution are fundamentally linked andinseparable. Consequently, where thosepowers are not deposited in one agency, therelevant investigation and prosecution
agencies must complement each other,always realizing that neither function or
agency is inferior.
The members of the group workshop
concluded that the role of prosecution must
be made effective in order to have a good
criminal justice system. It is expected thatthose countries where prosecutors have norole in investigation, will also realize theimportance of such role. In these countries,
the system should be modified so thatprosecutors can play an active role in the
improvement of investigation and thereby
assure due process of law.

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RESOURCE MATERIAL SERIES No. 53

GROUP 2
THE ROLE OF PROSECUTION IN THE SCREENING OF
CRIMINAL CASES
Chairperson
Co-Chairperson
Rapporteurs

Members

AdviserMr. Suhada Kalyana Gamalath(Sri Lanka)
Mr. Hiroki Yamanishi(Japan)Mr. Winston Cheng Howe Ming
(Singapore)
Mr. Abdul Razak Bin Haji Mohamad Hassan (Malaysia)
Mr. Menrado Vall Corpuz(Philippines)
Ms. Somjai Kesornsiricharoen(Thailand)
Ms. Patricia Cordero Vargas(Costa Rica)
Mr. Yoshitaka Izumi(Japan)Mr. Hideki Kurashige(Japan)Mr. Yasuo Nakazawa(Japan)Ms. Lithnarong Pholsena(Laos)
Professor Tomoko Akane(UNAFEI)

I. INTRODUCTION
1. As an introduction, a few preliminary
issues such as the definition of screening,
the importance and necessity of screening
and who conducts screening have to beconsidered.
A. Definition
2. No legal definition to the phrase “casescreening” is found in any of the legal
lexicons or any dictionaries that wereferred to. Hence, for the purpose of thisreport, the group has decided to define theword to give it a meaning that can bring
forth the practical realities behind theprocess of case screening.
3. Case screening connotes a series ofprocedural steps that have to be followed
at different stages of a criminal case by any
body, be it an executive or a judicial
authority, to determine the fate of acriminal case. It is a sieving process
followed by a decision as to whether toproceed with the criminal case in a courtof law or whether it should be concluded
by any other means such as composition,discharge, nolle prosequi, suspension of
326

prosecution, etc. In essence, this process
is sine quo non to due process of law.
According to Blacks Law Dictionary thedefinition of due process of law implies “theright of a person affected thereby to bepresent before a court or tribunal which
pronounces judgement upon the questionof life, liberty or property in its mostcomprehensive sense.”
B. Necessity and Importance of
Screening
4. The importance and the necessity of
having a system of case screening is
manifold. First, the system will enable thecompetent authorities to properly marshal
and vet the evidence of a case before
referring it to a court of law. Consequently
the authorities will be able to keep a tab
on all trial cases pending before that court
and to minimize the delay in disposing ofsuch cases. Secondly, case screening isimportant in order to meet the ends ofjustice. A criminal case which has not been
properly screened may result in having thewrong person being accused of a crime or
the actual culprit being discharged fromfurther proceedings. This would stultify

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
the essence of due process of law. As aresult of case screening, the harassmentthat an accused has to undergo by facing
frivolous or vexatious cases would be
obviated. Therefore, case screening
essentially is a device adopted to preserve
the quality of justice in any society. Thirdly,case screening also prevents overloadingof the courts with trivial and unimportant
cases. This would speed up the trial
process, preserving the true quality ofjustice. Lastly, screening can resolve theproblems of prison overcrowding.
C. Who Conducts Screening?
5. According to various procedures adopted
by different jurisdictions of the world,screening is done by different authorities
at different stages of a case. In somecountries where cases are tried exclusively
by a magistrate court or a sessions court,
the police is entrusted with the powers ofscreening. Sometimes, such screenings are
subject to the scrutiny of the prosecution.
In some jurisdictions, the court is also
involved in this process. For example,
where preliminary inquiry is recognized bylaw, case screening is being done by thepresiding magistrate.
6. The role of a prosecutor in casescreening is one of the most importantduties entailed to his job. From the very
inception of his career, he is required tomaster this method by properly studying
all the case records and investigation
records submitted to him for scrutiny andmaking determination as to whether thematter should be tried by a court of law orwhether other means of disposing the caseshould be employed. In some countries like
Kenya, Malaysia and Singapore, police
officers are employed as prosecutors. For
the purpose of this report, police
prosecutors will be considered as part ofthe prosecution.

7. The intention of this report is to discuss“case screening” in detail. In addition,
attention will also be paid to the problems
relating to case screening and we would
endeavor to find practical solutions to the
problems relating to the subject. New
suggestions to find safeguards to protect
and preserve the case screening system will
also be discussed herewith.
II. SCREENING BY THE POLICE1
8. In addition to investigations, the police
may in some instances screens cases.
A. Investigations and Screening
9. In almost every criminal justice system,
the police plays a leading role in theinvestigation of criminal cases. The
respective legislation on criminal
procedure lays down the police powers toreceive reports from any aggrieved party,
record statements from witnesses, visit
scene of crime, collect exhibits, records theinvestigation diary, arrest, search andsummons, etc. In most countries
influenced by the civil law, the powers ofinvestigation are also bestowed on the
public prosecutors. However, the initialinvestigations are usually carried out by
the police.
10. The way investigations is conducted by
the police has an important effect on thequality of screening conducted by thepolice, prosecution and the court. In ascreening process, the agency that conducts
screening has to review all the evidence
that has been gathered throughout theinvestigations. An assessment of the cases
is made based on the available evidence.
Therefore, to a large extent, the accuracyof screening will depend on how well theinvestigations have been conducted. If theinvestigations are lacking, the screening
will be less accurate.

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RESOURCE MATERIAL SERIES No. 53
B. How Screening is Done
11. There are two possible levels of
screening by the police. The first level isat the initial stage when the first
information report is received from any
person, particularly the victim of the crime.
The report is recorded in writing in thebook maintained by the police for thispurpose and the police reviews the evidence
to determine whether any specific offence
has being disclosed. If there is an offence
disclosed, then the report is classified
according to the specific section of the law.
However, if there is no offence, the report
may be closed and no further action istaken. Normally, screening at this stage
is done by the senior officer at the police
station or the officer in charge of the police
station. This form of case screening isfound in most countries.
12. The second level of screening occurs at
a later stage practiced in several countries,
which are influenced by the common law
system. A report that discloses a specificcriminal offence is referred to theinvestigation officer, who will take theappropriate action to investigate the casewith the ultimate aim of solving it andarresting the offender. On completion of
the investigations, he will submit his
investigation report to his superior officers,
who are experienced investigatorsthemselves having served many years as
investigators. The latter will peruse thereport to determine whether or not there
is sufficient evidence to substantiate theingredients of the charge relating to thealleged offence committed by the offender.
If there is a need to obtain further evidence
or when further clarification is required,
the report is returned to the investigation
officer with the appropriate instructions to
do so. If by then a suspect is under custody,
he may be released on police bail orproduced in the court for order of remand
to facilitate further investigation by thepolice. If the investigation officer still328

cannot obtain any further evidence tosupplement the earlier evidence hecollected and that the earlier evidencecollected is too weak to substantiate thecharge, the police may then decide to closethe case. In some countries, this applies
to minor offences2.
13. In some countries, for minor cases, thepolice will refer to the cases to court fortrial after screening. However, if the police
is doubtful as to whether the action ofclosing the case is a correct one or not, it
may also seek the advice of the publicprosecutor for direction 3. In screening
cases, the police normally considers thestatements of witnesses and the accused,the documents including the expert reports
a n d t h e i n v e s t i g a t i o n d i a r y. A nexperienced officer will be able to detect
whether the investigation officer has
fabricated the evidence or not. This could
be done by verifying the investigation diaryof the investigation officer with that of his
official diary or pocket book.
14. The police in most countries influenced
by the civil law system such as Costa Rica,
Laos, the Philippines and Thailand, does
not screen cases at the second level. In
Japan, there is a system of disposition oftrivial cases by the police committed byadult offenders. These offences include
theft, fraud or embezzlement involving asmall amount of money. Instead ofreferring the case to the prosecution, thepolice will submit monthly reports. In the
Republic of Korea, for offences punishable
with imprisonment of less that 30 days ora fine of less than 200,000 won, the policemay, after investigations, send the casedirectly to the court for trial.
C. Evidentiary Standard
15. From the deliberation in our group
workshop, it is found that in most countries
where the police decides to submit a charge
to the court, the evidentiary standard of

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
proof required is “prima facie“ or“reasonable prospect of securing theconviction”4.
D. Relations with the Prosecution
and The Court
16. In general, the police maintains a goodand close relationship with the prosecution.
The prosecutor is the friend and counselorof the police and will always be consideredin that spirit. In addition to specific cases
in which the laws requires the police toreport to the prosecution, all other unusualcases and legal problems which present
difficulty and require legal advice will bereferred to the prosecution. The latter will
willingly assist the police at all times andat all stages of the investigation. As
regards the courts, the role of the police inscreening cases will ensure that the courts
are not clogged with unnecessary andtrivial cases.
III. SCREENING BY THE COURT
17. In some jurisdictions, the court screenscases prior to the actual hearing. However,in some other countries such as Cameroon,
China, Costa Rica, India, Indonesia, Japan,
Laos, Malaysia, Maldives, Nepal, Pakistan
and the Republic of Korea, the court does
not perform such a function. Screening by
the court can be done in the following ways:
A. Preliminary Inquiry or Hearing
18. A “Preliminary Inquiry” is a hearing
held prior to trial during which the state isrequired to produce sufficient evidence toestablish that there is probable cause tobelieve that a crime has been committed
and that defendant committed it5.
19. The presiding magistrate performs thefunction of screening6. Its function is not
to decide on the guilt of the defendant.
Hence, a different degree of proof or qualityof evidence from indictment or conviction
at trial is required. Preliminary inquiryor hearing by the court is observed in
Ghana, Kenya, Singapore, Sri Lanka andThailand. The majority of these countries
conduct such proceedings to determine
whether there is sufficient evidence toproceed with the trial or refer or commit
the case to the High Courts for trial. For
some of these countries, the purpose is todetermine the truth or falsehood of thecomplaint against the offender.
20. The quantum of evidence to attain suchobjectives differs also in these countries.
In some countries, the standard of prima
facie is used, whilst in others, it is less thanthe proof of beyond reasonable doubt. In
Kenya, Subordinate Courts conduct a
preliminary inquiry in murder and treason
only. For Ghana, a preliminary hearing is
conducted by a community tribunal
consisting of a judge and two lay persons
in cases punishable by death and in firstdegree felonies. Singapore and Sri Lanka
limit such inquires to cases that are triableby the High Court such as murder,
trafficking in drugs and rape. In Thailand,a preliminary hearing is, in practice,
conducted only for private and not publicprosecution.
21. The mechanics of the proceeding also
vary in these countries because in some, it
is akin to a trial whereby the prosecution
and the defense present their evidence insupport of their cause. In others, it issummary in nature because no evidence ispresented by the contending parties andthe court merely relies on the documents
submitted by the police, the investigating
officer or the prosecution. In somecountries, a mere request to the magistrate
for the transmittal of the case to the High
Court will suffice.

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RESOURCE MATERIAL SERIES No. 53
B. Summary Proceedings7
22. Another form of screening by the courtis the so-called “Summary Proceedings”
which is practiced in Sri Lanka. These
proceedings are not actual trials. During
this process, the Magistrate Court
examines the complaint filed by the police,
the investigating officer or the privatecomplainant. It will then determine foritself whether or not there are well-founded
allegations to proceed with the trial of theperson complained of. If there is none, theMagistrate Court will dismiss the case.
Otherwise, it will issue a summon to theaccused for him to answer the charge. The
magistrate also drafts the charge against
the accused.
C. Pre-trial Conference8
23. In Philippines, the court conducts
screening by way of pre-trial conference.
This is conducted before trial to consider
the possibility of a plea bargain, thestipulation of facts, the marking for
identification of evidence by the parties, thewaiver of objections to admissibility ofevidence and such other matters as will
promote a fair and expeditious trial9.
24. One of the purposes of such conferenceis plea bargaining, which is the process
whereby the accused and the prosecution
in a criminal case work out a mutuallysatisfactory disposition of the case subject
to court approval. It usually involves thedefendant pleading guilty to a lesser
offense or to only one or some of the counts
of a multi-count indictment in return for alighter sentence than that for the grave
charge. It takes place when an Information(charge sheet or bill of indictment in othercountries) is already filed in court and theaccused had already been arraigned(reading of the Information to the accused
and asking him how he pleads). If hepleads not guilty, the case shall be then set
for pre-trial conference where thepossibility of plea bargaining may be

330

discussed. However, the conduct of a pretrial conference is not mandatory because
it may be held only by the court when theaccused and his counsel agree. Should theaccused opt to plead guilty to a lesser
offense during the pre-trial conference, theapproval of the prosecutor and the victim
or offended party must also be sought
before the court approves the same10.
D. Plea Bargaining Proceedings11
25. In Sri Lanka, there is a plea bargaining
system where the prosecution and thedefense discuss the possibility of theaccused pleading guilty to a lesser offense.
The approval of the court is required.
However, unlike in the Philippines where
the matter is discussed during the pre-trial
stage, in Sri Lanka it is taken up before oreven during the trial where the prosecution
and defense can compromise on this aspect.
IV. SCREENING BY THE
PROSECUTION
26. In various legal systems, like in Costa
Rica, Indonesia, Japan, Laos, Maldives andthe Republic of Korea, public prosecutors
monopolize public prosecution. In otherwords, only public prosecutors can bringthe case to the court. In China andThailand, although public prosecutors caninitiate prosecution, private prosecution by
the injured party is also allowed. However,in reality, private prosecution in thosecountries is very limited.
27. It is noted that in countries influenced
by the common law system like Ghana,
India, Kenya, Malaysia, Singapore andZambia, police prosecutors can prosecutecases. However, they are generally limited
to less serious cases. While prosecuting, a
police officer is acting as the representativeof the Attorney General or the Director of
Public Prosecution. In his capacity as aprosecutor, he is subject to the directionsof the Attorney General or the Director of
Public Prosecution.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
28. Usually, in screening cases, theprosecution decides whether to prosecutebased on the sufficiency of evidence.
Additionally, it may exercise discretion towithdraw the prosecution or suspend
prosecution, to do plea bargaining, or toproceed the case through summary
proceedings for the interest of justice.
According to the United Nations Guidelines
on the Role of Prosecutors, the prosecutors
must not commence and proceed withprosecution if there is no basis to frame thecharge and in setting aside cases, theprosecutors must fully appreciate therights of the suspects and also the victims.
A. Evidentiary Standard for
Initiation of Prosecution
29. Generally, in all countries, one ofsignificant functions of the prosecution is
to make either a prosecution order against
alleged offenders or a non-prosecution
order. It is widely accepted that an
innocent person should not be tried incourt. Nonetheless, the evidentiarystandard for initiation of a criminal trial
varies from country to country. From theanalysis of the group, it was found thatdifferent terminology, such as “prima facie”
and “probable cause”, was used to describe
the different evidentiary standards.
However, the same term can be used todescribe different standards; for example,“prima facie” can mean less than a 50
percent chance of conviction in somecountries but more than a 50 percent inothers. Therefore, to analyze the level of
proof, the group will endeavor to use
percentages to explain the standard, which
is only an estimation.
30. In countries like, India, Pakistan,
Kenya, Malaysia, Pakistan and Sri Lanka,
the evidentiary standard is prima facie.
Nonetheless, based on the analysis of thegroup, it is interpreted that the standard
for a prima facie case in those countries
varies from a 50 percent to 60 percent

certainty of guilt. In Singapore, theprosecution must be satisfied that there isreasonable prospect of securing aconviction before referring the case to thecourt for trial. This is more than a 50
percent possible proof of guilt12. In Costa
Rica, a balance of probability of guilt or
more than a 50 percent certainty of guilt
obtained from the investigation is enoughto send a case to trial. In Philippines, theevidentiary standard for the charge
according to the law is also probable cause
which is defined roughly as a 40 to 50
percent possibility of guilt. In Thailand,
there is no written law identifying theevidentiary standard for the charge. In
practice, the prosecution normally applies
probable cause as a standard inprosecution. However, such standard, inpractice, as opposed to the standard in thePhilippines, accounts for more than a 70
percent prospect of a guilty verdict. In Sri
Lanka, about 10 percent of the cases areclosed at this stage for this reason.
31. In China, Indonesia, Japan and theRepublic of Korea, the laws do not clearlymention the evidentiary standard. In
practice, the standard is similar to thecourt in rendering a guilty verdict, which
is beyond a reasonable doubt. In Japan,
the percentage of cases closed byprosecution for insufficiency of the evidence
was 1.2 percent in 199613. In the Republicof Korea, the percentage of cases closed at
this stage for the same reason was 10.1
percent in 199414.
32. The group has found that thedifference in the standard used can be
attributed to several reasons such as social,political and cultural differences, including
the influence of the different legal systems.
For example, one factor may be whether
the prosecution is vested with the powers
of investigations. In Japan and theRepublic of Korea where a high standardof proof is used, the prosecution can conduct331

RESOURCE MATERIAL SERIES No. 53
investigations, including interviewing
witnesses and the accused person. The
prosecution can, therefore, decide whether
to proceed with the cases based on
additional facts and circumstances such as
the veracity of the witnesses.
Consequently, the standard used is higher
than in countries where prosecution is notvested with the powers of investigations.
In such instances, the prosecution cannot
determine the strength of the evidence
through investigations. The only way is torefer cases to court to have the evidence
tested in a trial. More cases are sent tocourt for adjudication as such.
B. Withdrawal of Prosecution
33. From our comparative study, theextent of discretionary power exercised byprosecution differs from one state toanother. In some countries like Costa Rica,
Laos and the Philippines, the initiation of
criminal trial is compulsory if there exists
sufficient evidence to prove that theoffender is guilty to the court. In thesecountries, the prosecution does not havethe discretionary power to withdraw ordiscontinue the prosecution. In Indonesia,
the prosecution is obliged to prosecute
regardless of whether the case is minor or
serious. One exception is that the Attorney
General of Indonesia himself can exercise
the discretion not to prosecute. In practice,
this discretion is rarely exercised.
34. On the other hand, in various legal
systems, the prosecution can be withdrawn
even if there is sufficient evidence toproceed for trial. For the purpose of thisreport, the phrase “withdrawal ofprosecution” is defined as:
Any screening process where case iswithdrawn by the prosecution before
filing the charges or during trial even
if there is sufficient evidence to provethe criminal guilt in view of thecircumstances of the case.

332

35. It will include the notion of“Suspension of Prosecution”, which is
uniquely used in Japan and the Republicof Korea, discontinuance of prosecution aspracticed in some countries and nolle
prosequi.
1. Suspension of Prosecution
36. In Japan, a system known as“Suspension of Prosecution” exists. The
prosecution in Japan has general and vast
discretion to decide whether to prosecute
suspects. If after considering the character,age and situation of the offender, thegravity of the offense, the circumstances
under which the offense was committed,
and the conditions subsequent to thecommission of the offense, prosecution isdeemed unnecessary, the prosecution may
decide to suspend the case. This practice
is consistent with the “Expediency” or“Opportunity” principle. The percentage
of cases closed by the system is 30.9 percent
or relatively one-third of all cases in 1996.15
37. Likewise, in the Republic of Korea, theprosecution may decide not to prosecute if
the criminal trial does not accord public
interest or is against the public morals ororder or affects national security orimportant national interests after taking
into account the suspect’s age, character,p a t t e r n o f b e h a v i o r, i n t e l l i g e n c e ,circumstance, relationship to the victim,
motive, and method for committing thecrime, results and circumstances after thecrime. In 1994, 10.8 percent of the total
cases were dropped by the publicprosecutors16. Moreover, the Republic ofKorea has two particular systems
concerning the suspension of prosecution:a) Suspension of prosecution:
Decision for juvenile
offenders on the “Fatherly
Guidance Condition”
38. Prosecution is suspended on thecondition that the offender, who is under

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
the age of 18, is subject to the protection
and guidance of a member of the Crime
Prevention Volunteers Committee. This isfor a period of 6 to 12 months after thedecision, depending on the possibility ofcommitting a crime again in the future. To
make this decision, the prosecution will
select the person to protect the offenderamong the members to the Crime
Prevention Volunteers Committee. The
prosecution then hands in a referral
document to the person and receives fromthat person a certificate stating that he or
she has received the custody of the offender
and would bear the responsibility ofprotecting and guiding the offender. If theoffender does not comply with thevolunteer’s guidance or commits anothercrime, the prosecution may remand thesuspension of prosecution decision andprosecute the offender.
b) Suspension of prosecution:
Decision on the “Protectionand Surveillance Committee
Guidance Condition”
39. This is for adult offenders who need
protection and guidance by experts for aperiod of 6 to 12 months, depending upon
the possibility of the offenders committing
another crime in the future. The
prosecution entrusts the offender to amember of the Protection and SurveillanceCommittee. The offender is subject to theprotection and guidance of the committee.
40. The discretionary authority of theprosecution in Japan and the Republic ofKorea has proven to be a very useful meansin the correction of criminals, the protectionof society, alleviating the case loads of thecourt and preventing the overpopulation ofprisons. It has been widely accepted among
criminal justice agencies and the public.

2. Discontinuance of Prosecution
or Non-prosecution
41. In various legal systems such as China,
Maldives, Singapore and Thailand, theprosecution can withdraw prosecution even
if there is sufficient evidence to prove thecase. In other words, there is no mandatory
prosecution in those countries. However,the detailed practice relating to this process
still differs from one country to another.
The number of cases in Singapore where
the prosecution withdraws prosecution issmall. Most of them are petty or minor
cases. Likewise, in Maldives the cases arelimited. In Maldives, the Attorney General
can withdraw prosecution after writing tothe office of the President and on his
approval. In Thailand, according to theinternal regulation of the Office of the
Attorney General, the prosecution mustrefer the case to the Attorney General forfurther consideration as to whether
prosecution should be withdrawn.
However, in Thailand, this is rarely done.
In China, non-prosecution is allowed incases where the circumstances of offence
are minor.
3. Nolle Prosequi
42. In some countries like Ghana, Kenya
and Sri Lanka, there is power exercisableby the Attorney General to discontinue thecase from trial at any stage after
indictment and before judgment which istechnically known as nolle prosequi. In
general, it can only be exercised under the
direction of the Attorney General. In thesecountries, there is no obligation for the
Attorney General to mention any reason.
However, it is exercised only when theinterest of justice and state demands
recourse to such action.

333

RESOURCE MATERIAL SERIES No. 53
43. The grounds for discontinuance orwithdrawal of proceedings are varied andmay include the following circumstances:(1) Additional evidence found later
proving the innocence of the
defendant;(2) Amnesty or pardon;(3) False implication of accused person
as a result of political and personal
vendetta;(4) Adverse effects that the continuationof prosecution will bring on public
interest in the light of changed
situation; and(5) Unavailability of a prosecution
witness.
C. Plea Bargaining
44. In most countries, plea bargaining is
not practiced. However, in Malaysia, thePhilippines, Singapore, Sri Lanka andZambia, plea bargaining is an acceptable
practice. In Sri Lanka and the Philippines,
plea bargaining is subject to the approvalof the court as seen from the part ofscreening of cases by the court. On thecontrary, in Malaysia and Singapore, theprosecution has the full authority to decideon plea bargaining matters to avoid
prejudicing the judge. Therefore plea
bargaining is done solely between theprosecution and the defense, and it usually
involves negotiations for a reduced numberof charges and or an amendment to lessserious charges in exchange for the guilty
plea. However, it should be noted that, as
compared to the practice in the UnitedStates, plea bargaining does not occur quite
often in such countries.
D. Alternatives to Ordinary Trial
Proceedings
45. Besides ordinary trial proceedings,
there exist some other alternatives asfollows:334

1. Summary Proceedings
46. Summary proceedings are proceedings
whereby the court will usually impose only
a fine on the accused as practiced in somecountries such as Japan and the Republicof Korea. In such countries, the publicprosecutors have the authority to decide
whether to proceed the case to the court bysummary proceedings or not17. Throughsuch proceedings, ordinary trial is notproceeded. In summary proceedings, a
single judge adjudicates the case based on
documentary evidence. It is noteworthy
that in Japan, only 4.7 percent of cases
were tried by formal procedure whereas thepercentage of summary procedure wasapproximately 49.2 percent in 1996 18.
Correspondingly, in the Republic of Korea,
only 7.4 percent of cases were prosecutedfor formal trial and 42.8 percent of cases
was prosecuted for summary trial in 199419.
2. Imposition of Fines by the
Police or Other Administrative
Officials
47. The method whereby the case is settled
outside the courtroom is applied in several
countries such as China, Malaysia,
Singapore, Sri Lanka and Thailand. In
China, a public security organ may imposea penalty, that is a warning, a fine from
one to 200 yuan and detention from 1 to 15
days, for petty offences as a final
disposition. In Malaysia, Singapore and
Sri Lanka, for minor cases such as traffic
offences, the police or other administrative
agencies will issue a summons to theoffender who has committed the offence.
The offender is informed that he is being
offered a composition fine. If he pays thefine within a certain period, the offense isconsidered settled. Correspondingly, inThailand, for trivial offenses punishable
with only with a fine and offenses
punishable with a maximum of one month’s
imprisonment or a small fine, the police can
impose fines on the offenders. In cases
where the accused does not agree with the

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
imposed fine, the cases will be prosecutedis the court as ordinary cases.
E. Relation with the Police
48. In most countries, the prosecution isvested with the power to require additional
investigation from the police before making
any decision on the case. The police isobliged to follow the prosecution’s
instructions regarding further
investigation to be completed. In general,the police is cooperative to such directions.
49. In most jurisdictions, the screening
authority of the prosecution is ultimate. As
a result, the police can not contest it.
However, there are some exceptions in a
few countries. For example, in Thailand,
the Chief of the Police Department canbalance the power of prosecution regarding
the non-prosecution order for cases
occurring in Metropolitan Bangkok. This
non-prosecution order, if not issued by the
Attorney General himself, is not final
unless concurred by the Director-Generalof Police. If he disagrees with the order,
the case will finally be reviewed by the
Attorney General and, therefore, his order,whether or not to prosecute, will be final.
In Indonesia, if the investigator stops
investigation, he shall inform the publicprosecutor; likewise, if the prosecutor stops
prosecution he shall inform theinvestigator. In India, if there is a conflictof opinions between the investigating
officer and the prosecution as to theviability of prosecution, the ultimate
decision whether to send a case for trial
lies with the police authority which is theDistrict Superintendent of Police.
V. PROBLEMS IN SCREENING
50. There are several factors, which canaffect the screening process. Some of thesefactors can cause a decrease in the numberof cases screened, resulting in an increasein the number of cases that are proceededwith in court. The net effect is an increasein the number of cases the court has tohandle. This has overloaded the courts insome countries. The conviction rate may
also be lower as a less stringent standardof proof is used in the screening process.
51. Excessive screening may result in
fewer cases. This means that less cases
are proceeded with to court for adjudication
as the evidentiary standard used in thescreening process is very high. The net
effect may be that the conviction rate isunusually high.
52. It is important to note that these effects
may not be considered a problem in acountry if the people of that country do not
perceive it as a problem.
53. For ease of discussion, the group has
divided the problems into two categories:
general problems and specific problems. In
the former, all three components can beaffected. In the latter category, these
problems are specific to each component.
A. General Problems
54. The following are some of the general
problems relating to screening for thepolice, the prosecution and the court:
1. Manpower and Management ofWorkforce
55. In some countries such as Laos and Sri
Lanka, there are insufficient police officers
to handle investigations. This could be due
to several reasons; for example, in somecountries, there is low motivation in thepolice force as there is a lack of incentives
for officers to work. There are also
problems with recruitment as not many
people are interested in joining the police
force. Sometimes, even if the manpower issufficient, the organization of the personnel
is ineffectively managed. Such problems
affecting investigations can also hamper
the proper screening of cases. A result of335

RESOURCE MATERIAL SERIES No. 53
such problems is to cause less screening.
Some countries face another related
problem: police officers that are alreadyexperienced in investigations aretransferred to another department. Thiscan create a depletion in the pool ofcompetent investigating officers, which isvery often hard to replace.
56. This problem affecting the police canalso affect prosecution. In some countries,
prosecution is viewed as a difficult job andhence, a lot of very competent graduates
are shying away from the profession.
Furthermore, in most jurisdictions,working as a private attorney in the private
sector yields more returns. Therefore,
some countries are experiencing a loss ofbright young talents to the private sectors,
resulting in an unbalance in the quality of
the workforce. This can affect effective andaccurate screening.
2. Facilities and Support
57. Several developing countries face
problems relating to technical support andfacilities, such as the availability ofcomputers. These are essential
requirements for the efficient dispositionof cases, including the sieving of theevidence and correct decision-making.
Undeserving cases or cases with weakevidence may be proceeded with in court
for trial due to the lack of such facilities.
For example, the police or the prosecutor
may be unable to determine theantecedents of the accused due to the lackof facilities and, therefore, be unable todecide properly whether to bring the caseto court.
58. It is essential for the police, theprosecution and the court to be updatedwith the latest legal developments,
whether it is case law or a new enactmentby the legislature. In some countries, legal
materials such as such books andperiodicals are not accessible as facilities

336

are lacking. As a consequence, there may
be less or inaccurate screening.
3. Abuse of Powers
59. Perhaps the greatest problem is theabuse of powers which can affect the fairand equitable screening of cases. Thispossibility exists whenever any agency isgiven the discretion to decide on suchmatters. In particular, problems such as
corruption can also disrupt the screening
process. In most jurisdictions, there havebeen incidents where police officers andprosecutors have been charged withcorruption. The prevalence of such
incidents will vary from one country toanother, depending on factors such aswhether the officers are satisfied with thesalary and other incentives that their jobs
provide. It also appears that corruption
occurs quite often in offences where thepublic officers and the accused have direct
dealings. There are also cases where thefabrication of evidence has occurred; forexample, drugs were placed in an accused’s
bag to secure a conviction. Hence, thisproblem can result in both excessive
screening as well as less screening.
B. Specific Problems
60. The group has identified several
problems affecting screening. Specifically,
they are:
1. The Police
61. The primary role of the police is toinvestigate. Hence, the problems inscreening for the police will inevitably
relate to the investigation process. Theseare:a) Education
62. Generally, in most countries, theeducational requirements for the
recruitment of police officers into the police
organization are less stringent than theprosecution. Unlike the prosecution, there

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
is also no requirement that they be law
graduates. During investigations, thepolice officer in charge has to know the legal
requirements for the particular offence
which he is investigating so that important
evidence is gathered and not missed. Thisis especially important for the screening
process by the police where it has to decide
whether to recommend suspension ofsentence as in some countries20. Without
adequate training in the law, the screening
process is likely to be hampered.
b) Political influence
63. The duty of the police is to maintainlaw and order in the country. To ensure
strong and effective command and control,
it is necessary that the police be a part ofthe executive. Hence, in most countries,
the police is the executive arm of thegovernment. Because of this, the likelihoodof political influence from the executive ishigher as compared to a body that is
independent of the executive 21 . The
screening of cases can be affected to someextent.
2. The Court
64. Similar problems that affect the police
and the prosecution may also affect the
courts in screening. These will include lackof technical expertise, logistics and legal
training.
65. Other specific problems that affect therole of the court in screening are as follows:a) Problems relating topreliminary inquiry
66. In some countries influenced by thecommon law system, the courts screen
cases by preliminary inquiry. However,there are several problems accompanying
the use of preliminary inquiry:(i) Inordinate Delay
67. Having another inquiry prior to thetrial proper can cause unnecessary delay,
since the inquiry is often a duplication of
the trial itself. In Sri Lanka, the need to
conduct preliminary inquiry for some cases
has caused significant delay amounting toabout one and a half years. Hence,preliminary inquiry can slow down
tremendously the whole judicial process.
(ii) Duplication
68. Related to the above point is that
preliminary inquiry creates a lot of
unnecessary work, which is a duplication
to the trial. This problem is compoundedby the fact that in most cases, the accused
will be committed for trial in the High
Court in any case.
(iii) Unfair advantage to thedefense
6 9 . I n a p r e l i m i n a r y i n q u i r y, t h eprosecution is expected to reveal a lot of
information regarding the case against theaccused. However, the accused need notreveal his defense at that stage. In fact, incertain countries, he is allowed to remainsilent. Hence, there is some unfair
advantage to the accused.
(iv) No avenue for appeal
70. In some countries, the decision of thejudge not to refer the case for trial cannot
be appealed or reviewed. This means thatthe aggrieved party does not have any
avenue to lodge his complaint.
b) Problems relating to
Summary Proceedings
71. In Sri Lanka, the Magistrate Courts
utilize summary proceedings as a way toscreen cases. The Magistrate Courts haveto determine the appropriate charges thatcan be preferred against the accused basedon the facts that are revealed in theproceedings. The problems relating to theuse of such proceedings are:337

RESOURCE MATERIAL SERIES No. 53(i) Overloading
72. In addition to the cases that theMagistrate’s Courts have to handle, they
have to deal with cases referred to them inthe summary proceedings. This
overburdens the courts and creates
unnecessary delays.
(ii) Duplication
73. Ordinarily, in such proceedings, thepolice will assist the Magistrate’s Courts
in drafting charges. The court then decides
on the charges based on these draft
charges. This is a duplication of the work.
(iii)Mere formalities
74. The Magistrate’s Courts usually will
adopt the charges that have been draftedby the police. Hence, having suchproceedings to determine the charges is infact unnecessary.
(iv) Prejudice
75. If the magistrate is of the view thatthe case should be proceeded with for trial,
the same magistrate will also hear the case.
This means that the magistrate may be
prejudiced by the previous knowledge of thecase.
3. The Prosecution
76. The prosecution in most countries istasked with the responsibility of examining
the evidence gathered to support the
charge. It is also involved in the screening
cases to determine whether the cases
should be proceeded with in court for trial.
The problems relating to this screening
process are as follows:a) Knowledge in other fields
77. With an increase in the sophisticationof the crimes being committed, theprosecution very often are expected toscreen cases which are very complex innature. Some of these cases may requirevery specialized fields of knowledge suchas money laundering, international crimes

338

and computer crimes. Even with the legal
training prosecutors received in law school,
it is impossible to be trained in every legal
and non-legal field. Hence, a lack ofknowledge due to insufficient training inthese areas may result in less screening.
Although this affects both the police andthe prosecution, this problem is perhaps
more serious for the prosecution as it has
a supervisory role over the police.
b) Investigative skills andexpertise
78. Prosecutors in countries which havebeen influenced by the common law system
are not vested with the powers ofinvestigation. As such, in countries suchas Singapore, Sri Lanka and Thailand, theprosecutors can only depend on the police’s
files in coming to a decision whether toprosecute or not. If the evidence of the caseis not accurately reflected, this caninfluence the decision-making process. In
addition, an understanding of theinvestigation process is essential to themaking of a proper and accurate decision,
especially if the prosecution does notinvestigate the case personally. Therefore,
it is important for prosecutors to be familiar
with the investigation process in order toproperly exercise the powers of discretionin the screening. Being handicapped in thisarea may affect the screening process.
c) Coordination with police
79. For the efficient disposition of cases by
the prosecution, the prosecutors have tomaintain a close working relationship withthe police to ensure proper coordination.
This is especially important in countries
where the powers of investigation are only
vested in the police and not the prosecution.
In some counties, investigation papers areoften not sent on time to the prosecutor’s
office. If there is insufficient time to screen,
the prosecutors can either suspend the caseor conduct a cursory examination of theevidence before sending the file for107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
prosecution in court. This can result in bothan increase or decrease in screening.
Having mentioned that there should be aclose liaison between the police and theprosecution, there can also be problems if
both these agencies become to familiar witheach other. Too much familiarity may cause
a lack of objectivity in the role of theprosecution in supervising theinvestigations and screening conducted by
the police.
d) Problems relating to theextent of discretionary
powers80. Although prosecution has to possess
some discretion to screen cases, the issue
is the degree. The problem is that the more
extensive discretion, the easier it is for
errant prosecutors to abuse theirdiscretion. The number of cases screened
may either be increased or decreased insuch a situation.
81. On the other hand, having a system ofcompulsory prosecution also poses someproblems. In such a system, cases arereferred to courts even if there are verystrong mitigating factors to warrant thecases to be dealt with differently; forexample, the accused is a first offender, thegravity of the offence is not serious or theaccused expresses remorse over his
misdeed. As a result, for some countries,
the courts are clogged with cases that are
trivial. Hence, precious court time, which
could have been used more productively, iswasted in dealing with these cases. In
addition, the prisons are overcrowded as aresult.
e) Political influence
82. Prosecution in most countries is partof the executive branch of the government.
Therefore, like the police, the prosecution
can be influenced by political pressure notto prosecute even if there is sufficientevidence against the accused or vice versa.

For example, a high-ranking political figure
is charged for a crime and pressure may
be put on the prosecutor to discontinue thecase. This problem can affect any
jurisdiction regardless of whether thecountry practices withdrawal ofprosecution or not. The prosecution may
be pressured to continue or discontinue thecase on the basis of insufficiency of evidenceor withdrawal of prosecution. Suchexternal influences can either cause anincrease or decrease in the number of cases
being screened.
f) Police prosecutors
83. In some countries, police prosecutors
are law graduates. However, in some otherjurisdictions, they are not. For the latter,
this may cause problems as screening acase to determine whether there issufficiency of evidence requires a goodk n o w l e d g e o f t h e l a w. I n s o m ejurisdictions, the promotion of police
prosecutors depends on the police force. As
a result, the exercise of their discretion
could be unconsciously hampered in favorof the police. As a consequence, there will
either be an increase or decrease in theamount of screening conducted by theprosecution.
g) Problems relating to private
prosecution
84. In countries such as Indonesia, Japanand the Republic of Korea, the prosecution
monopolizes prosecution; i.e., only
prosecutors can bring a criminal case to thecourts. On the other hand, in somejurisdictions such as Kenya, Singapore andThailand, there is a system of private
prosecution. In these proceedings, theinjured parties bring criminal cases to thecourts themselves. In some countries,
private prosecution is restricted to certain
offences, primarily those that violate
private rights, such as defamation or petty
bodily injuries. Elsewhere, the right ofprivate prosecution may be exercised only

339

RESOURCE MATERIAL SERIES No. 53
when the prosecution waives prosecution
in a case due lack of public interest or
insufficiency of evidence. In such cases
where the prosecution has little or no
actual control over the proceedings,
screenings are lacking as compared to cases
where the prosecution undertakes theprosecution on its own. There may be lessscreening.
VI. SAFEGUARDS AND
RECOMMENDATIONS
85. From the above analysis, it is clear thatsome of these problems are common to all
three components of the criminal justicesystem. These are:(1) lack of requisite knowledge andqualifications;(2) lack of technical facilities andsupport; and(3) manpower and personnel problems
86. For lack of knowledge andqualifications, there could be improvementin training in the required fields. The
qualifications of recruitment either to thepolice force or prosecution can also be
increased. Facilities can also be improved.
For example, in some countries where theuse of computers is highly encouraged,
latest case updates can be obtained very
easily with the use of advanced search tools
in computers. Manpower and personnel
issues can be resolved by proper
management of the workforce andincreasing productivity.
87. For problems in relation to external
influence and abuse of powers, one
important safeguard is having honorable
officers of high integrity. Hence, there is aneed to consider these factors during therecruitment process. Regular ethics
courses could also be conducted as part ofthe continuous legal training of the police
and the prosecution.

340

88. The other specific safeguards andrecommendations are as follows:
A. The Police
89. There are several ways to provide
safeguards for screening by the police.
1. Supervision by the Prosecution
90. In several countries, the prosecution
has a supervisory role over the police. The
police can refer the case to the prosecution
if the police wants to seek the advice of theprosecutors regarding difficult points oflaw. Sometimes, advice as regards further
investigations is sought. In somejurisdictions like Maldives and Singapore,
if the police wants to withdraw any case,the case has to be referred to theprosecution for concurrence. Therefore, forscreening by the police, the prosecution can
act as a check. This can further enhance
the screening process.
2. Improved Co-ordination with
the Prosecution
91. The primary responsibility of the police
is to investigate and to gather evidence forprosecution. One of the primary roles ofthe prosecution is to examine theseevidence to determine whether prosecution
should be proceeded. For effective
screening, the prosecution and the police
should maintain close ties with each other.
3. Limit the Powers of Police in
Screening Cases
92. In order to prevent possible abuses,
there are two recommendations consideredby the members of group. One of therecommendations is to abolish the powersof the police in screening cases22. The police
in such a case has to refer all cases to theprosecution for the prosecutors to decide
whether to proceed with the case. This isdone in several countries like Costa Rica,
Maldives and Thailand, where only theprosecutors have the power of screening.
The other recommendation is to limit the107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
powers of the police in screening cases tosome less serious offences. This has beencone in some countries such as Malaysia.
B. The Court
93. The opinion of the majority of the groupis that the court should conduct thescreening of cases. Screening by the court
should not be abolished as it serves as anadditional safeguard to the screening
conducted by the police and theprosecution 23 . However, the group
recommends enhancing the present
screening proceedings. The safeguards andrecommendations are:
1. Preliminary Inquiry
94. From the foregoing, it is clear that
there are problems relating to preliminary
inquiry. However, there are also someadvantages in that it can provide a sievein screening undeserving cases. It also
serves as an additional check by the courtson the prosecution and the police.
Therefore, in order to overcome some ofthese problems, some members of the group
recommend improvements to the existingprocedures; for example, disallow crossexamination at the stage of the preliminary
inquiry which is to be reserved for theproper trial. Preliminary inquiry can also
be restricted to complicated orcontroversial cases where re-screening isrequired. Other members are of the viewthat the preliminary inquiry should be
abolished 24 . This has been done in
Malaysia. It is noted that in Sri Lanka,
preliminary inquiry was abolished but
revived again subsequently. The reasonsare perhaps peculiar to the circumstancesof the county.
2. Appeal and Judicial Review
95. As a means of check on the powers of
the courts to screen cases, there should besome provisions in law to allow for appeal
and review to a higher court or body by the
aggrieved party. For example, in Thailand,

appeal procedures are available for casesthat are not referred to the court for trial.
3. Abolition of Screening by
Magistrates in Summary
Proceedings
96. In Sri Lanka, there is a move to abolishthe power of the magistrate to screen cases
by way of summary proceedings. Anotherprosecutorial body coming under thesupervision of the Attorney General will bevested with this power. This body willcomprise law graduates.
C. The Prosecution
1. Powers of Investigations
97. In order to resolve the problems of thelack of investigative skills on the part ofthe prosecution, the prosecution could bevested with the powers of investigation asin Japan and the Republic of Korea.
Alternatively, the prosecution could beallowed to investigate in some special
cases. This is the position of China andIndonesia. This will enhance the ability ofthe prosecutors in screening cases as they
can gain invaluable experience byunderstanding the investigation process.
They can also supervise the legality of theinvestigations more effectively. In addition,
if the prosecutor personally investigates,
he need not depend merely on the files of
the investigating officer to come to adecision. Hence, the screening by theprosecution is more accurate.
2. Security of Tenure
98. As mentioned before, the prosecution
to some extent is part of the executive armof the government. However, in theexecution of its duties, it has to uphold therule of law and protect the public interest.
In order to ensure that the office of theprosecution is independent, one
recommendation is to provide security oftenure for the prosecutors. Having securityof tenure means that prosecutors will haveno fear in the exercise of the powers of341

RESOURCE MATERIAL SERIES No. 53
screening. The office of the Attorney
General can be protected by having it
entrenched in the constitution. This has
been done in countries such as Singapore.
Other than constitutional protection, theremoval process could be made moredifficult by legislation or regulations. In
Japan, prosecutors can only be removed
under the following circumstances:(1) voluntary resignation;(2) reaching retirement age;(3) found unsuitable for the position by
the Public Prosecutors Qualifications
Examinations Committee; and(4) disciplinary action.
99. In the Republic of Korea, prosecutors
can be removed from office through an
impeachment process initiated before theConstitutional Court or upon conviction ofa crime punishable with imprisonment. In
the Philippines, the removal of the publicprosecutors rests with the President.
However, in practice, they are not usually
removed. In Thailand, public prosecutors
usually hold office until they reach theirretirement age of sixty. They can beremoved by the Public Prosecutor
Commission.
3. Checks and Control
100. To prevent possible abuses during thescreening of cases, there is a need to havesome checks and control. There are two
types of checks. One is external and theother is internal. External checks on theprosecution can include the following:a) Check by an independentbody
101. Abuses in the screening process could
be taken up to an independent body thatserves like an ombudsman. There areseveral examples in various countries. In
Japan, if the prosecutor decides not toprosecute and the victim is not satisfied
with this decision, the latter can appeal to
the Prosecution Review Committee, which342

consists of lay persons 25 . After theCommittee receives the application, it will
examine the case and return a verdict. If
the Committee rules that the nonprosecution is not proper, the prosecution
has to reconsider its original position. In
the Republic of Korea, a constitutional
petition may be made to the Constitutional
Court if the decision of the prosecution
amounts to a violation of fundamental
rights. In the Philippines, the appeal ismade directly to the Secretary of Justiceas to the propriety of non-prosecution. If
the decision of non-prosecution amounts toan abuse of discretion, the aggrieved party
can file a complaint to a Tanodbayan who
can sanction an erring public official. In
China, there exists a Standing Committeeof the People’s Congress which can review
cases if a complaint is made to theCommittee. A system of a slightly different
nature but similar in effect exists in the
United States. A “Grand Jury,” which
consists of lay persons representing thecommunity, decides whether a person
should be indicted after listening to theevidence as presented by the prosecution.
One of the functions of this system is toserve as a check on the prosecution’s
discretionary power.
b) Media scrutiny
102. The media plays a significant role inmodern criminal justice administration. In
reporting news about crimes, the media cancreate public interest and awareness which
in turn serves as a check on the prosecution
in the exercise of its discretion. Hence, asa result of media scrutiny, the prosecutionis accountable to the public in its decisionmaking process. In addition, in Thailand,
when there is a non-prosecution decision,
the Attorney General as a policy will makeavailable the reasons for non-prosecution
to the media. This will ensuretransparency. The group also holds theview that the media can protect theindependence of the prosecution. However,107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
there is a need to prevent
sensationalisation by the media. The
media should be responsible in its reportingof cases. In this respect, there are laws insome countries where the newspapers areprevented to report the names of thevictims of sexual offences.
c) Interdepartmental
consultation
103. Periodic interdepartmental
consultation should be conducted among
the institutions in the criminal justiceadministration. The aim is to develop
policies and guidelines to minimize or
eliminate interference or destruction as
well as to monitor and evaluate theimplementation of such policies andguidelines.
d) Judicial action
104. Another possible means of controllingthe use of discretion is to utilize judicial
proceedings. In Japan and the Republic ofKorea, the codes of criminal procedureprovide that if a prosecutor declines toprosecute an offender for an offence
relating to the abuse of official power orfor a violation against a citizen by a law
enforcement officer, the complainant canrequest the court to re-examine the caseand commit it for formal trial. If such
request is granted, a private lawyer will
be appointed by the court to exercise theprosecutor’s function.
e) Internal checks
105. Internal checks can include thefollowing:(i) Check by higher
authority
106. In most jurisdictions, there exist someform of internal control. Within theprosecution, there can be checks bysuperior officers. In Singapore and thePhilippines, junior officers are required toobtain the concurrence and approval ofsenior prosecutors in discontinuing cases.
Dissatisfied complainants can also appeal
to a competent High Public Prosecutor’s
Office or to the Attorney General for review.
In Japan, the public prosecutor generally
has to seek the approval of the senior publicprosecutor on whether to proceed withprosecution or not. If the aggrieved party
is still not satisfied, there is an additional
check of appeal to a higher supervisory
authority in the organizational structure.
In the Republic of Korea, if the decision of
non-prosecution by the District Public
Prosecutor’s Office is not satisfactory, there
can be an appeal to the High Public
Prosecutor’s Office. There can also be afurther appeal to the Supreme Public
Prosecutor’s Office. This system of appeal
is similar to the appeal in courts. An appeal
to the Constitutional Court is also possible
as a final resort. In China, the nonprosecution order made by the People’s
Procuratorate is delivered to the public
security organ, which can review thedecision.
(ii) Code of ethics
107. Drawing up a set of ethics (code or
regulation) for the prosecution stipulating
the standards expected of the prosecution
in the performance of its duties with thenecessary sanctions for its implementation
is highly recommended. Senior officers
within the department can administer the
sanctions.
4. Enhance the Discretion to
Withdraw Prosecution
108. As discussed previously, it appears
that if there is a system of withdrawal ofprosecution, there is a greater chance forabuse. For example, in coming to a decision
to withdraw prosecution even if there issufficient evidence, it may be difficult tounderstand the reasons why the case waswithdrawn. This means that theprosecution can consider factors not
relevant. The group, however, does not

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RESOURCE MATERIAL SERIES No. 53
recommend abolition of withdrawal ofprosecution for the following reasons:(1) Sometimes, bringing a case to courtfor prosecution may not be the bestsolution in the view of thecircumstances of the case. These areminor offences or offences relating toyoung offenders. Withdrawing
prosecution in these cases could givea chance to the offender to reform andreintegrate into society;(2) Without withdrawal of prosecution,
all cases except those with weak or
no evidence are referred to court.
This would include minor cases suchas the theft of small items of
insignificant value. This will
overload the court with unnecessary
and trivial cases. In addition, thiswill increase the time frame forhearing cases; and(3) Having a system of withdrawal ofprosecution can prevent theovercrowding of prisons. Before
suspension of prosecution was
introduced in 1884 in Japan, theprisons were overcrowded and a greatamount of financial burden wascaused to the government. This
problem was resolved with theintroduction of this system.
109. From the above analysis, it is clearthat the benefits outweigh the possible
abuses. In Costa Rica where withdrawal
of prosecution is currently not practiced, a
new legislation providing for suspension ofprosecution will be in force in the nearf u t u r e 26. I n a n y c a s e , a b o l i s h i n g
withdrawal of prosecution may not preventthese abuses completely. The prosecution,
if corrupt, can have the case withdrawn on
the basis of no evidence even if there is infact sufficient evidence to proceed with thetrial. Hence, the group is of the view thatthe practice of withdrawal of prosecution
should continue with the additionalsafeguard that all decisions of the344

prosecutors be accompanied with reasons.
The reasons should be documented so that
if need be, the basis of withdrawal ofprosecution can be made known to thevictim or any other interested party. This
will ensure transparency andaccountability in the decision-making
process.
5. Police Prosecutors
110. In some countries where police
prosecutors are not law graduates, there
are steps to slowly reduce the number ofpolice prosecutors. This to achieve 100
percent legally trained prosecutors.
Additionally, it will also enhance thecontrol of the prosecution. However, thegroup also recognizes the importance of theinstitution of police prosecutors in somejurisdictions and the need to preserve it.
For these countries, it is recommended thatin order to further enhance screening,
police prosecutors should receive sufficientlegal training, especially if they are not law
graduates. The office of the police
prosecution should also be independent
from the police so that the discharge of its
duty is not faltered by loyalty issues.
6. Private Prosecution
111. The group is of the view that thesystem of private prosecution should be
retained for two reasons. First, it canresolve the manpower problems affecting
the prosecution. Secondly, private
prosecution can be considered a safeguard;
for example, when public prosecution isrefused, the injured party can instituteprivate prosecution. To resolve theproblems of private prosecution, it isrecommended that some improvements bemade to the existing system. For example,
in Thailand, all private prosecutions haveto be screened by a preliminary inquiry. Insuch a case, the court can provide thescreening which is lacking.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
VII. CONCLUSION
112. As discussed in this paper, casescreening is a practice sine quo non tobuilding up an effective criminal justicesystem in any society. It essentially helps
to reduce the workload of a criminal court
and consequently, prevents delay in thedisposition of cases. The foregoing chaptershave discussed, inter alia, the need and theimportance of having a proper screening
system, which authority should be vested
with the power to carry out screening in acriminal case and a comparative analysisof the different systems of screenings. It isindubitable that the prosecution in many
countries plays a very vital role in casescreening. The prosecution is acting as aquasi-judicial entity, operating at anintermediate position between theexecutive and the courts. The prosecution
with a proper legal background can decidebest what cases should be brought for trial.
At the same time, the prosecution is in thebest position to decide what cases should
be withheld from adjudication by the
courts. Since the prosecution has a direct
responsibility to a trial court, he is expected
to carry out the screening carefully. That
helps to save criticism and humiliation forbringing frivolous cases for trial. At thesame time, in the eye of the public, he will
be able to preserve his professional
integrity. Moreover, this will help to keepa firm tab on the cases pending for trial
before a court. Case load will be lessened.
Public funds will not be wasted.
G o v e r n m e n t ’s c o f f e r w i l l n o t b e
overburdened. The prisons will not be
overcrowded. Consequently, justice will
not only be done but seen to be done.
Hence, it is the consensus of the group thatthe power of the prosecution in casescreenings should be strengthened toenable the prosecution to discharge its
duties more professionally, objectively,
legally and independently. However, thisshould not be misapprehended as astatement to undermine the importance of
having the police and the court also
involved in case screenings at different
stages of a criminal case. After all, forscreening, the most important component
parts of the criminal justice system are thepolice, the prosecution and the court.
113. The final part of this report is devoted
to consider the various problems andsafeguards relating to case screening. In
considering the nature of the problems
relating to screening, what is easily
discernible is that the problems inscreening could be due to various reasons.
Sometimes, these reasons are peculiar to asociety. For instance, manpower problems,
problems relating to lack of technicalfacilities, etc. could be directly attributable
to the economic and social conditions ofeach society. In the circumstances, any
move to eliminate these problems should
be considered in the backdrop of theeconomic development of a society.
114. However, some other major ethicaland moral problems also have serious
impact on case screening. For instance, thenon-availability of constitutionalsafeguards providing an independent
position to the authorities involved in casescreening and the possibility of havingsome room for political or extraneous
influences on case screening authorities,
etc. are viewed as serious problems by thegroup. It is the consensus of the group thatthese problems can be resolved by making
a firm joint commitment by a society tofight these social evils. One effective wayof achieving this goal will be by introducing
firm legal safeguards and entrenchedclauses to the constitution to protect andnurture the case screening authorities. It
is important to acknowledge sincerely these
problems are not stemming out of basicsocial problems. Therefore, we believe thateach society and all governments shouldfind out the safeguards and

345

RESOURCE MATERIAL SERIES No. 53
recommendations to make it possible.
These matters are discussed in the paper.
Of course, they are neither perfect nor
consummate the whole issue fully.
However, we hope that they may be of somehelp to find some realistic measuresestablish effective criminal justice systems
in the global village.
ENDNOTES
1 In this report, the word “Police” refers
to police officers only, excluding police
prosecutors.
2 In some countries, all serious cases arereferred to the public prosecutor for his
advice and approval to withdraw
prosecution. This means that theProsecution screens the case.
3 According to our definition, if theprosecution’s concurrence is needed towithdraw prosecution, screening is doneby the prosecution.
4 The group has found that even if thesame term is used in different countries,
the standard is not the same. Pleaserefer to discussion under the topic:
Evidential Standard for Initiation ofProsecution under Screening by theProsecution.
5 Definition in Black’s Legal Dictionary,
5th Edition.
6 In Costa Rica and France, an examining
judge plays a role in screening. Thisfunction is similar to the role of thepresiding magistrate conducting
preliminary inquiry.
7 Please note that the phrase “Summary
Proceedings” used in this context refers
to the procedures adopted by Sri
Lankan courts to screen cases. It isdifferent from the usual summary
proceedings as in Japan as it iscommonly known.
8 Please note that the phrase “Pre-trial
Conference” used in this context refers
to the procedures adopted by Philippine
courts to screen cases.

346

9 Please refer to, Rule 118, section 1 of
the Rules on Criminal Procedure—
Philippines, which reads as follows:“Pre-trial when proper—To expedite thetrial, where the accused and counsel
agree, the court shall conduct a pre-trial
conference on the matters enumerated
in section 2 hereof, without impairing
the rights of the accused”. Further,
Rule 118, section 2, reads as follows:“Pre-trial conference; subjects—The
pre-trial conference shall consider thefollowing:(a) Plea bargaining;(b) Stipulator of facts;(c) Marking for identification of evidenceof the parties;(d) Waiver of objections to admissibilityof evidence; and(e) Such other matters as will promote afair and expeditious trial.
10 Rule 116, section 2, reads as follows:“Plea of guilt to as lesser offence—The
accused, with the consent of theoffended party and the fiscal, may beallowed by the trial court to plead guilty
to a lesser offence, regardless of whether
or not it is necessarily included in thecrime charged or is cognizable by a courtof lesser jurisdiction than the trial court.
No amendment of the complaint or
information is necessary. A conviction
under this plea shall be equivalent to aconviction of the offence charged for
purposed of double jeopardy.”
11 P l e a s e n o t e t h a t p h r a s e “ P l e a
Bargaining Proceedings” used in thiscontext refers to the procedures adopted
by Sri Lankan courts to screen cases.
The meaning may be different from theusual attached to it.
12 I n S i n g a p o r e , t h e m e a n i n g o f“reasonable prospect” is similar to thestandard of “prima facie” used in Sri
Lanka.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
13 This number represents the percentage
of all cases the prosecution disposed of,including cases relating to offenses suchas traffic professional negligence androad traffic violations. Please see, “TheAnnual Report of Statistics on
Prosecution for 1996 of Japan”(Research and Training Institute of the
Ministry of Justice).
14 This number represents the percentage
of all cases the prosecution disposed of,including the offenses such as traffic
professional negligence and road traffic
violations. Please see, “The White
Paper on Crime, 1995 of Korea”(Research and Training Institute of the
Ministry of Justice).
15 This number represents the percentage
of all cases the prosecution disposed of,including cases relating to offenses suchas traffic professional negligence androad traffic violations. Please see, “TheAnnual Report of Statistics on
Prosecution for 1996 of Japan”(Research and Training Institute of the
Ministry of Justice).
16 This number represents the percentage
of all cases the prosecution disposed of,including the offenses such as traffic
professional negligence and road traffic
violations. Please see, “The White
Paper on Crime, 1995 of Korea”(Research and Training Institute of the
Ministry of Justice).
17 In Japan, the defendant’s consent isrequired. Otherwise, the prosecution
cannot utilize the summary
proceedings.
18 This number represents the percentage
of all cases the prosecution disposed of,including cases relating to offenses suchas traffic professional negligence androad traffic violations. Please see, “TheAnnual Report of Statistics on
Prosecution for 1996 of Japan”(Research and Training Institute of the
Ministry of Justice).

19 This number represents the percentage
of all cases the prosecution disposed of,including the offenses such as traffic
professional negligence and road traffic
violations. Please see, “The White
Paper on Crime, 1995 of Korea”(Research and Training Institute of the
Ministry of Justice).
20 For example, in Singapore, the police
usually states its views as to whether
the cases should be suspended orproceeded with.
21 For example, the judiciary is anindependent organ.
22 According to our paper, this refers to thesecond stage of screening by the police.
The first part of the screening should
not be abolished.
23 In Costa Rica, there is a move to abolishscreening conducted by the courts.
24 I n F r a n c e a n d C o s t a R i c a , t h eexamining judge also acts like an
investigative agency during screening.
Such a procedure in Costa Rica will beabolished.
25 All non-prosecution decisions can beappealed to the Prosecution Review
Committee.
26 The new law is found in Articles 25 to
29, Law No. 7594 of the Criminal
Procedure Code.

347

RESOURCE MATERIAL SERIES No. 53

GROUP 3ISSUES CONCERNING PROSECUTION IN RELATION TO
CONVICTION, SPEEDY TRIAL AND SENTENCING
Chairperson
Co-Chairperson
Rapporteurs

Members

AdviserMr. Kyoji Ishikawa
Ms. Pauline Christine Ngo Mandeng
Mr. Madan Lal Sharma
Mr. Jonathan John Mwalili
Dr. Meen Bahadur Poudyal Chhetri
Mr. Mohamed Jameel Ahmed
Mr. Yutaka Kubo
Mr. Takahiro Ueda
Professor Yuzuru Takahashi

I. INTRODUCTION
The main objective of the criminal trial
is to determine whether an accused person
has violated the penal law and where foundguilty, to prescribe the appropriate
sanction. Prosecution is an executivefunction of the state and is usuallydischarged through the institution of theprosecutor. The burden of proof rests on theprosecution as per the prescribed standardof proof. The prosecutor faces several
problems in proving the guilt of the accused
person. Some of these problems fall beyond
the scope of his duties and responsibilities.
The legal framework, the law enforcement
infrastructure and the quality of thepersonnel operating within the legal
system, amongst other factors,
considerably affect the conviction rate. In
the first part of the paper, our group has
defined conviction rate, and analyzed thereasons for variation in rates in different
countries. The group has discussed someof the problems which may arise in proving
the case in a court from the perspective of
the prosecutor under four categories
relating to investigation, prosecution, trial,
and legal and systemic factors. The group
has also proposed solutions to some of these
problems.

348(Japan)(Cameroon)(India)(Kenya)(Nepal)(Maldives)(Japan)(Japan)(UNAFEI)

The right to a speedy trial is afundamental human right. It has been
affirmed in the Universal Declaration of
Human Rights 1948 and enshrined in theconsitutions and statutes of somecountries. Speedy trial is a vital elementin the administration of criminal justice.
In fact, unnecessary delay in the trial
constitutes a denial of justice. The
prevention and control of crime as well as
the effective rehabilitation of the convict
are enhanced by speedy trial. The
prosecutor is at the center stage of acriminal trial and plays a leading role inits conduct. In the second part of the paper,
the group has examined some of the laws
and practices which prevail in different
countries where this right is guaranteed.
Factors affecting the realization of a speedy
trial have also been discussed from theperspective of the prosecutor.
Sentencing is the final stage of a criminal
trial. An appropriate sentence is one which
strikes a balance between the preservationof social order and the rehabilitation of theconvict. The participation of the prosecutor
in sentencing and the stage of the suchparticipation differ depending on the legal
systems as practiced in different countries.
Sentencing remains the prerogative of the107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
presiding judge/magistrate who usually
enjoys wide discretion, and therecommendations of the prosecutor are notbinding on him. In the third part of thispaper, the group discussions revealed
problems which may arise in thesentencing process. The countermeasures
proposed therein, are intended to ensurethat the prosecutor effectively assists thecourt in arriving at an appropriate
sentence.
II. HOW WELL DOES THE
PROSECUTION ESTABLISH ITSCASE AGAINST THE DEFENDANT?
A. Preface
The preservation of life and property is
one of the fundamental functions of thestate. Over the millennia, the state has
endeavored to perform this function
through various institutions. Crime andcriminality are as old as humanity itself
and their total elimination appears to beb e y o n d h u m a n i n g e n u i t y. T h e
investigative, prosecutorial, adjudicatory
and correctional institutions aim atcontaining criminality within sociallyacceptable limits. The state causes
sanctions to be imposed upon the criminals
commensurate with the gravity of theircrimes.
Any violation of the law is investigatedby the competent agencies and if a prima
facie case is made out, a charge sheet/billof indictment is filed in the competentcourt. Prosecution is conducted by theprosecutor on behalf of the state. The court
adjudicates the case on the basis ofevidence adduced and either convicts theoffender or acquits him. The court imposes
the sentence on the convict after it hasheard him and the prosecutor. The
aforesaid procedure is followed in mostjurisdictions, with occasional variations topunish the offender as per the procedure
established by law. The correctional
services attempt to rehabilitate him.

B. Conviction Rate
The conviction rate may be taken tomean the ratio of cases convicted out of thetotal number of cases decided in a given
year.
Our group is of the view that theconviction rate is a reasonably good
indicator of the efficiency and efficacy ofthe criminal justice system prevailing in acountry. Of course, there is a limitation to
the significance of the conviction rate as
an indicator of prosecutorial efficacy.
Distinctive conviction rates are caused by
the differences in the evidential standard
required at the initiation of prosecution,
more fundamentally the differences in therole of investigators and prosecutors torefer cases to the court. In countries wherea considerably low evidential standard isrequired to send a case to court, it should
be tasked to pass judgement of conviction
or non-conviction based on suchprosecution, the conviction rate issystematically lower than the countries
requiring a higher evidentiary standard.
A high conviction rate, however, is not the
primary objective of the criminal justicesystem.
Notwithstanding the aforesaid, a highconviction rate may be indicative of
methodical and painstaking investigations
and effective prosecution. On the contrary,an excessively low conviction rate definitely
indicates unsuccessful and ineffective
prosecution.
It should be made clear, however, that it
is not the mandate of the prosecutor tosecure conviction at any cost. He is required
to be fair, impartial and must present all
the facts, including facts and circumstancesfavorable to the offender, before the court
for an appropriate decision. This is thegeneral practice in most common law
countries, where the prosecutor does nothave the authority to withhold a case fromprosecution.
Our group realizes that no conviction
handed down by the court of first instance349

RESOURCE MATERIAL SERIES No. 53
is final until confirmed by the highest courtin the event of an appeal. However, as no
published data is available in relation to
the decisions of appellate courts, data
regarding the convictions as rendered by
the courts of first instance is used.
Similarly, the convictions obtained throughthe plea bargaining process shall be dealt
with in this paper.
C. Overview of Conviction Rate inSome Countries
1. England and Wales1
The conviction rate in England andWales was 90.6 percent in 1992-93; 90.2
percent in 1993-94 and 90.3 percent in
1994-95. It may, however, be added that the
newly created Crown Prosecution Service
has the power to withdraw a case fromprosecution under certain circumstances.
Further, about 85 percent defendants
pleaded guilty.
2. India2
Under the Indian Penal Code offences,the conviction rate was 47.8 percent in 1991
and 42.1 percent in 1995. In 1995, theconviction rate for grave offences was asfollows: murder, 37.0 percent; culpable
homicide not amounting to murder, 36.3
percent; rape, 30 percent; kidnapping andabduction, 30.3 percent; robbery, 34.1
percent; and burglary, 42.7 percent.
However, for the Special and Local Laws,
the conviction rate was 85.8 percent in1995. This is largely explained by a highconviction rate in traffic related offences
i.e., 90.4 percent.

3. Indonesia3
The overall conviction rate was 98.4
percent in 1994. Of offenders, 84.17 percent
were sentenced to terms of imprisonmentand others were fined/paroled or given
minor sentences.
4. Nepal4
According to a survey conducted in 20
districts of Nepal in 1996, the averageconviction rate was found to be 16 percent.
5. Japan5
The conviction rate in Japan isextremely high. In District Courts, it was
99.91 percent in 1994; 99.92 percent in1995 and 99.94 percent in 1996 in cases
wherein the defendant had pleaded guilty.
In cases wherein the defendant had notpleaded guilty, the conviction rate was
97.73 percent in 1994; 97.92 percent in1995 and 98.01 percent in 1996. In
Summary Courts, the conviction rate was
99.79 percent in 1996 wherein the
defendant had pleaded guilty and 94.90
percent in cases wherein the defendant had
not pleaded guilty. In grave offences suchas homicide, robbery, bodily injury, rape orlarceny, the acquittal rate is as low as
between 0.1 to 0.3 percent.
6. Republic of Korea6
Conviction rate in 1993 was 99.5
percent. It was 99.11 percent in murder;
99.87 percent in robbery; 99.74 percent inrape and 99.59 percent in bodily injury
cases. In special code offences, conviction
rate was 99.61 percent.
3

1

Mr. G.D. Ethrington’s paper on “The Crown
Prosecution Service and the Public Interest”
published in UNAFEI Resource Material Series
No.49, p. 93.
2 As per data published by National Crime Records
Bureau, Ministry of Home Affairs, Govt. of India,
in Crime in India, 1995.

350

Bureau of Central Statistics, Government ofIndonesia, 1994, p. 26.
4 As per country paper presented by the participantof Nepal in this course.
5 The White Paper on Crime, 1996, Research andTraining Institute, Ministry of Justice, Governmentof Japan, p. 112.
6 The White Paper on Crime published by theGovernment of Korea, 1993, p. 182.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
7. Thailand
The conviction rate ranges between 97
to 98.40 percent from 1991 to 1993, as per
statistics published by the Attorney
General’s Office. However, we have been
informed that a large proportion of theseconvictions are reversed by the appellate
courts.
8. United States of America7
The conviction rate turned by the federal
courts in the U.S.A. was 82.7 percent for
all offences in 1993. The rate in grave
offences was as follows: murder, 78.6
percent; negligent manslaughter, 78.3
percent; assault, 76.3 percent; robbery, 92.5
percent; rape, 80.2 percent; andkidnapping, 64.0 percent. It may, however,be added that 90 percent of the convicts
pleaded guilty and another 1 percent
pleaded nolo contendere. The remaining 9
percent were convicted at trial.
9. Others
No published data is readily available
about Costa Rica and China. Our group is,
however, informed that the conviction ratein Costa Rica was 56 percent in 1996. In
China, it was 99.75 percent in 1994 and99.5 percent in 19958.
In Sri Lanka, the conviction rate was
86 percent in grave crimes in 19969 .
In the Sindh Province of Pakistan, theconviction rate was 40.96 percent in 1993;
36.86 percent in 1994 and 50.88 percent in199510.

7Compendium of Federal Justice Statistics, 1993,
U.S. Department of Justice, p. 43.
8 As per responses to our questionnaire received fromthe participants from China and Costa Rica.
9 As per the lecture paper presented by Mr. D. P.
Kumarsingha, Additional Solicitor-General,
Attorney-General’s Department, Sri Lanka, in thiscourse.
10 As per the country paper presented by theparticipant of Pakistan in this course.

D. Analysis of Conviction Rates
The conviction rate is largely affected by
the quality of investigation and thestandard of proof prescribed by law to send
the case to trial. The propensity of offenders
to plead guilty also has a significant
bearing on the conviction rate.
In Japan and the Republic of Korea, theconviction rates are extremely high. In
these countries, prosecutors have thestatutory discretion not to initiate
prosecution due to insufficiency of evidence.
They also have the authority to conduct
investigation in addition to directing,guiding and supervising investigations
conducted by the police. Resultantly, only
strong cases are sent up to the courts.
Further, in Japan 92 percent of offenders
plead guilty, and the Japanese Criminal
Procedure Code provides for exceptions to
the hearsay rule in certain circumstances,which help in proving the cases. These
factors largely explain the high conviction
rate. In Indonesia, the conviction rate isalso extremely high. This is largely
explained by strict screening made byprosecutors at the pre-trial stage.
The conviction rates turned out by the
U.S. federal courts are fairly high, eventhough 90 percent of convictions (including
murder cases) are based on pleas of guilt.
The same is true of England and Wales.
At the other end of the spectrum arecountries like India and Sri Lanka. The
conviction rate in Penal Code Offences inIndia was as low as 42.1 percent in 1995.
The conviction rate in the Sindh Provinceof Pakistan is also comparatively low. In
these countries, the standard of proof
required for conviction is much higher thanthe one required for sending a case to thecourt. In most countries, cases are sent fortrial on the basis of “prima facie” evidence.
At the same time, the cases should be sent
to the court where there exists “prima facie”
evidence. The evidence should be such thatthe defendant has a case to answer.

351

RESOURCE MATERIAL SERIES No. 53
However, the case is required to be
proved “beyond reasonable doubt” in court
to secure a conviction. The evidence
required should be conclusive in nature andinconsistent with the innocence of the
defendant. Furthermore in most countries,
the defendant is presumed to be innocent
until proved guilty. The burden of proof
wholly rests on the prosecution and only
shifts as per the conditions prescribed bylaw.
This low conviction rate is also due tothe inadmissibility of confessions madebefore the police; the lack of binding legal
provisions for compelling the suspect/defendant to give samples of his blood,
handwriting and fingerprints, etc. and thenegligible percentage of offenders who
plead guilty unlike the practice prevailingin England, Japan, the Republic of Korea,
the U.S.A., etc.
Our group discussed whether
prosecution initiated by police prosecutors
undermines their capacity to establish thecase against the defendant. There wereseveral opinions about the validity of police
prosecution.
E. Problems in Proving the Guilt of
the Defendant
The conviction rate in countries likeIndonesia, Japan and the Republic of Korea
is very high, whereas in countries like India
it is relatively low. It is now proposed to
examine problems in proving guilt
particularly in the context of countries
having a low conviction rate. The problems
are divided in four categories, namely; (a)investigation; (b) prosecution; (c) trial; and(d) legal and systemic problems.

11 Hereinafter, we use the word “police” as a typicalexample of investigating agencies.

352

1. Investigation-relateda) Insufficiency of evidence due
to poor investigation
The investigating agencies are required
to collect all available evidence during
investigations. If painstaking and timely
investigations are not conducted, valuableevidence maybe lost. Sometimes the police11
fail to collect vital evidence from the site
such as blood stains, fingerprints and otherevidence in cases of physical violence, due
either to lack of training or inefficiency. At
times, the statements of key witnesses are
not recorded as their importance in proving
the case is not understood. Statements may
also be recorded in a casual and slipshodmanner by the investigating officer whichleaves gaps in the evidence. Occasionally,
the police fail to work in collaboration withforensic experts. As a result, forensic
evidence is not collected for use against theoffender. The police may send cases to thecourt even when the evidence is insufficient
for reasons of expediency.
b) Inexperience and inadequate
qualification of investigating
officers
Investigations are often conducted by
low-ranking officers who are new in service
and lack experience. As the caliber of suchofficers is not high, they may be deficientin procedures. Hence their inability to
conduct quality investigations. The lacunae
left are often harmful in trial.
c) Non-separation of
investigative staff
Even though some countries have set
up specialized investigative agencies tohandle specific category of crimes, thepolice still remains the main investigating
agency to handle general crimes. In mostcountries, investigations are conducted atpolice stations where the police handle bothinvestigations and duties to maintain social
order. No staff is earmarked exclusively forinvestigative work. Generally, the police

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
gives preference to activities related to thepreservation of social order which resultsin lack of sustained and systemic
investigation, inordinate delay and theconsequential loss of valuable evidence.
d) Poor supervision by thesuperiors
Sometimes senior officers are unable tomonitor and supervise investigations in atimely manner due to heavy work load or
indifference. Hence, vital lacunae are left
in cases and are exploited at the trial stage.
e) Lack of qualified personnel,
logistics and financial
resources
Investigating agencies do not have wellqualified officers in sufficient numbers.
Often they after have excessive work load
and the quality of investigation is adversely
affected. Efficient investigationnecessitates qualified personnel
commensurate with the work load. Besides,
lack of resources such as transportation,communication and office equipment may
affect the quality of investigations.
Investigating agencies suffer from these
constraints in some countries.
f) Lack of cooperation andcoordination withprosecutors
The prosecution is separate from thepolice in most countries and they often
function under separate ministries. In
countries where the prosecutors do not
enjoy the statutory authority to guide andsupervise police investigations, they are
not usually consulted by the police during
investigation even when legal advice isnecessary. Sometimes, prosecutors are
consulted but their directions are notcomplied with due to departmentalized
perceptions.

g) Lack of transparency andother forms of malpractice
In some countries, investigations are notalways conducted in a fair and just manner
due to extraneous factors such as lack ofprobity amongst the investigators, politicalpressures, etc. This leads to various formsof malpractice which include the failure torecord statements from key witnesses orthe intentional manipulation of statementswith a view to screening the offenders.
2. Prosecution-related
Public prosecution is an executivefunction of the state which is conducted byt h e p r o s e c u t o r. I t i s h i s p r i m a r y
responsibility to prove the guilt of the
defendant. Public prosecution, inter alia,
has a significant bearing on the conviction
rate. The problems in efficient prosecution
are enumerated hereinafter.
a) Inadequate or delayed
scrutiny by the prosecutor
In Indonesia, Japan, Maldives, Nepal,
the Republic of Korea and Sri Lanka, theprosecutor has absolute authority todetermine whether a case should be sent
for trial or not, and he alone determines if
the evidence is sufficient. In somecountries, the case file is sent to theprosecutor for screening at the pre-trial
stage, even though he does not make thefinal decision. Sometimes, the prosecutor
does not conduct proper screening due toheavy work load or other extraneous
factors. In Sri Lanka, the police sends thecase file to the Attorney General’s Office
for advice. Scrutiny may take a long time,and it may be too late for the State Counsel
to make any meaningful suggestion to thepolice, to improve the quality ofinvestigations. Hence, relatively weakcases are sent to court.

353

RESOURCE MATERIAL SERIES No. 53b) Inadequate supervision of
investigations
In countries where the prosecutor isvested with the authority to supervise
investigations, he may not exercise it
sufficiently due to heavy work load or
indifference. There is not always adequate
cooperation with the police in the dischargeof supervisory functions.
c) Inadequate preparation fortrial
To conduct a trial is one of the mostimportant functions of the prosecutor. It isobserved that sometimes the prosecutors
are not prepared for the trial and fail to
examine the witnesses in a professionalmanner. As a result, court time is wasted.
d) Delay in trial
This is a serious problem in somecountries and may be fatal to theprosecution. Due to delayed trials, some
witnesses may die, suffer from memory
loss, or lose all interest in prosecution.
Some defense counsels apply for
adjournments on flimsy grounds further
contributing to unnecessary delay in trials.
The prosecutor should oppose suchapplications.
e) Reluctance of witnesses totestify
It is a serious problem in crimes relating
to organized gangs, terrorist groups anddrug offenders. The witnesses are often
reluctant to testify due to fear of reprisals
or because they are compromised
themselves with the defendant.
f) Difficulties in obtaining andadducing forensic evidence
Forensic evidence is extremely useful inproving the guilt of the defendant. The
reports prepared by experts should betendered in court and used with thetestimonies of the said experts. Sometimes
these reports are not available when354

needed court. It is not always easy to secure
the presence of the experts in court as they
have other functions.
g) Non-cooperation of victims
Victims may not cooperate with theprosecution and sometimes retract theirprevious statements.
h) Lack of cooperation between
the prosecution and thepoliceFor successful prosecution, the need forcooperation and understanding between
these agencies which cannot be overemphasized. The police is required tosecure the presence of witnesses when they
are needed in court. Generally, theprosecutor also ensures the execution of
court orders through the police agency. Anylack of cooperation may result in inefficient
prosecution and delayed trial.
i) Quality of prosecution
For efficient prosecution, it is importantthat the prosecutor be preferably a law
graduate, have adequate experience and agood command of the law.
3. Trial-relateda) Inadequate court structures
In some countries, the problem of“docket explosion” is very serious. The
courts are overburdened and their number
not commensurate with the needs. This
often results in delayed trials, which may
be prejudicial to the prosecution.
b) Lack of resources—human orotherwise
In some countries, the courts do not haveadequate support services such as
stenographers, typists and interpreters,
modern office equipment (i.e., computers)
and telephones, which consequently affects
the work of the courts.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSEc) Numerous and unnecessary
adjournments
Cases are adjourned on flimsy grounds,
often at the request of defense counsel.
Sometimes prosecutors do not oppose theseapplications. This impedes the trial
process.
d) Stay on trial by the appellate
courts
It is a serious problem in somecountries. Stays disrupt the court scheduleand delay trials.
e) Political pressures and otherextraneous factors
The court may not conduct fair andimpartial trials due to political pressureand other extraneous factors. Judgements
may be intentionally delayed.
4. Legal and Systemic Factors
Apart from the problems enumerated
above, there are some problems which are
inherent with the legal structures andsystems prevailing in certain countries.
These problems are as follows:a) Exclusion of evidence
In some countries, confessions madebefore police officers are not admissible inevidence irrespective of the rank of theofficer. Due to this legal disability, valuableevidence against the defendant is lost.
Furthermore, in some countries, thedefendant is not legally bound to give his
fingerprints, handwritings or blood
samples, etc., either during investigationor the trial. Valuable forensic evidence isthus precluded, which makes theprosecution’s task all the more difficult.
b) Inadequate salaries andstatus of criminal justicesystem authorities
The salary scales of the police,prosecutors and judges in some countries
are relatively low. This makes it difficult

to attract suitable hands in these
professions. Investigations conducted by
low-ranking police officers do not invoke
the confidence of the public at large.
c) Lack of coordination
between the police,prosecution and prison
authorities
In some countries, these departments
are placed in different ministries. Prisoners
are not produced in court on the appointed
dates because of lack of coordination. Lackof cooperation between the prosecutors andthe police officers is prejudicial to theprosecution case, as mentioned earlier.
F. Solutions to the Problems
Our group has discussed in detail thecountermeasures to overcome the problems
enumerated above. Solutions to these
problems are as follows:
1. Investigation-relateda) Investigation by experienced
and qualified police officers
Investigations, particularly of grave
crimes, should be conducted byexperienced, well-trained and senior police
officers. Certain statutes do prescribe therank of officers competent to conduct
investigations under special laws.
However, our group suggests thatinvestigations for serious offences be
conducted by senior officers. The
supervisory officers should be deeply
involved in investigations from theinception to the end of the case.
b) Use of scientific methods ofinvestigation
Forensic evidence is often conclusive innature and difficult to rebut. Police officers
should be trained to collect forensic
evidence and to use other modern scientificmethods of investigation.

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RESOURCE MATERIAL SERIES No. 53c) Separation of investigating
staff
Our group feels that specialization
within the police force is essential for
improving the quality of investigations.
The group recommends the creation of aseparate cadre of investigating officers ineach police force.
d) Adequate logistical andfinancial resources
To improve the quality and speed ofinvestigations, it is imperative that
adequate resources—human andmaterial—are made available to the police.
Adequate budgetary provisions should bemade for this purpose by the competentauthorities.
e) The prosecutor and police
should act in harmony on thebasis of mutual trust andconfidence
Our group feels that prosecutors should
be involved in investigations as this may
improve their overall quality.
f) Others
Political interference in the activities ofthe police is a fact in some countries, eventhough the degree may vary from country
to country. The police needs to be insulated
from political influence by creating a buffer
between it and the political authority. The
police also needs to improve its ethicalstandards and enhance its professional
skills to better invoke greater publicconfidence.
2. Prosecution- and Trial-relateda) Thorough screening by theprosecutor
The prosecutor needs to meticulously
screen cases so that only legally viable
cases are sent up for trial. This would
reduce the chances of acquittal and savethe defendant from avoidable harassment(incarceration in some cases) and financial

356

liability. In countries, where the prosecutor
does not have the authority to drop
prosecution of his own level, he should
record his candid and categorical opinion
in the case file so as to enable thecompetent authority make an appropriate
decision. Strict scrutiny by the prosecutor
would definitely lessen the burden of thecourts.
b) Meticulous preparation anddiligent production ofparties during trial
The prosecutor should meticulously
prepare both the facts and law in everycase. He should review the case file,
exhibits and also test witnesses, if
necessary. In this regard, the ways andmeans of prosecutor’s preparation vary,depending on the differences in the legal
framework of the disclosure or discoveryof evidence. Irrespective of the degree of
one party’s duty to disclose evidence to theother, it is always recommendable for theprosecutor to expect the potential defense
and try to eliminate the room forreasonable doubt about his case. He should
also secure police cooperation to ensure theproduction of witnesses in court on theappointed dates. The work load of theprosecutor should be kept withinreasonable limits so that the quality of his
output is not adversely affected.
c) Improving the court
structure
In those countries that suffer from the
problem of “docket explosion”, the numberof courts should be increased. Also,
adequate secretarial services and otherlogistical support should be provided.
d) Strict attitude toward
adjournments
The prosecutor should vehemently
oppose frivolous applications by the defense
counsel.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSEe) Improving the quality ofprosecutors
Prosecutors should have a goodcommand of the law, procedure and enoughexperience for effective prosecution. It is,therefore, essential that qualified
personnel be inducted into the profession
from the open market. This would
necessitate improving the salary scales,
perks and status of prosecutors.
3. Legal and Systemic Factorsa) Amendments in laws
In some countries, the law expressly
excludes the admissibility of confessions
made before police officers. Also in somecountries, the witness statements before
investigators may never be admissible as
incriminating evidence (not merely as
impeachment evidence) in the court
without the defense’s consent. Suchprovisions, apart from being out of line withthe laws applicable in other countries,
preclude valuable evidence from being
adduced in court. These provisions should
be considered for review by the competentauthority12. Similarly provisions need to be
12 For reference, Article 322, paragraph 1 of the Codeof Criminal Procedure of Japan provides as follows:“A written statement made by the accused or adocument which contains his statement and issigned and sealed by him may be used as evidence
against him, if the statement contains as admission
by the accused of the fact which is adverse to hisinterests, or if the statement was made under suchcircumstances as secure a special credibility.
However, where the written statement or document
contains an admission by the accused of the factwhich is adverse to his interests and there exists
any suspicion that the admission has not been madevoluntarily, it shall not be used as evidence against
the accused as well as in cases prescribed by Article
319, even though the admission is not a confessionof a crime.”
Also, Article 321, paragraph 1, item 2 of the same
Code provides for the exception to hearsay rules,
approving on the following conditions theincorporated in the procedural laws of somecountries to compel suspects to give
samples of handwriting, fingerprints,blood, etc., to the investigating agencies.
b) Mobile courts
In some jurisdictions, the transportation
network is not well developed, and parties
find it very difficult to attend court
sessions. Besides, such travel involves
extra expenditure. Setting up mobile courts
in such jurisdictions may be a way of taking
justice closer to the people and reducing
expenditure.
c) Witness protection program
Witnesses who are reluctant to depose
in court for fear of reprisals need protection
from the state. In the U.S.A., there are legal
provisions for the protection of witnesses,
which also permit a change of their identity,
their relocation and financial support until
such time that they become self-reliant.
This program has yielded good results inthat several gangsters have been convictedon the basis of the testimony of suchprotected witnesses. A similar witness
admissibility of a written statement made by aperson other than the accused, or a document whichcontains his statement and is signed and sealed byhim:“As regards the document which contains astatement of a person given before a publicprosecutor, where he does not appear or testify on
the date either for the preparation for public trial
or for the public trial because of death, unsoundnessof mental condition, missing, staying outside ofJapan or being so physically incapacitated that hecannot testify, or where he, appearing on the dateabove mentioned, has given a testimony contrary
to or materially different from his previous
statements; however, in the last case this shallapply only where there exist special circumstances,because of which the court may find that theprevious statements are more credible than thetestimony given in the course of interrogation on
the date above mentioned.”

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RESOURCE MATERIAL SERIES No. 53
protection program may be launched incountries affected by organized crime andterrorism.
III. IS SPEEDY TRIAL REALIZED?
A. Preface
Courts are the citadels of justice—they
are the vanguards of life, liberty andproperty. They radiate the last ray of hopeto those in despair.
Indeed courts perform a very vital rolein society. They have the enormous task ofdeciding cases and controversies so thatjustice may be rendered. The fulfillment of
this duty by the court in promptly resolving
controversies is necessary for the people’s
continued belief in them and respect for thelaw.
B. What is Speedy Trial?
Speedy trial is considered a fair process
conducted within a reasonable period oftime. Our group considered speedy trial anindicator of the efficiency of a criminal
justice system because where it exists:• There is a faster flow of cases.
• It may facilitate the writing of court
judgements.
• There will resultantly be more cases
heard and disposed of.
• Litigation expenses are reduced ascases may be heard and completed in
one or more court sessions.
• Tension on the part of the parties,
especially those in police or prison
custody, will be eased, since thependency of a case is reduced to theminimum period. People will, thus,
resort to the judicial process insteadof taking the law into their hands.
“Justice delayed is justice denied” runs
the proverb. Delay in the criminal justicesystem is a matter of major concern. It
raises a number of issues of legal
significance, some constitutional, others ofstatutory dimensions.

358

It cannot be denied that speedy trial isin the interest of both the defendant andthe society. It is a guarantee to thedefendant against his infinite incarceration
without trial, (if he is in custody) and tends
to minimize anxiety if he is admitted bail.
Speedy trial serves the public interest inthat it minimizes the possibility of the
defendant jumping bail or influencing
witnesses. Besides, pre-trial incarcerationis costly and delayed trial may cause key
witnesses to suffer from memory loss, or
become unavailable.
It is difficult to determine a precise timeframe for a speedy trial. However, speedy
trial not only means the commencement of
trial within a statutory prescribed timeframe from the time the suspect is arrested,
it also encompasses the completion of thetrial within the legally prescribed timeframe. It is the endeavor of our group toaddress these issues in the light of legal
and constitutional provisions prevailing insome countries.
C. Present Situation in Some
Countries
The legal and constitutional provisions
prevailing in some of the countries are as
follows:
1. India
Article 21 of the Constitution of India
guarantees the right to life, which has beeninterpreted by the Supreme Court of India
to mean right to speedy trial.
According to section 167 of the Criminal
Procedure Code, the charge sheet must be
filed against the defendant within 90 days
from the date of arrest in offences
punishable with death, imprisonment forlife or imprisonment of not less than 10
years, and within 60 days in other offences,failing which he will be released on bail.
The failure to file the charge sheet in the
afore time frame, however, does notprejudice the trial. Besides, there is no law
in India which prescribes a time frame forthe completion of trial.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
2. Indonesia
The Indonesian Criminal Procedure
Code prescribes the time frame of detentionof a suspect at pre-trial stage. If the arrestis made by police, the maximum detention
period is 20 days, which may be extended
to 40 days by the prosecutor and another60 days by the District Court, the total
being 120 days. Detention is ordered by
the District Judge is 150 days. The Codealso prescribes the maximum period ofdetention by the High Court to 150 days
and the Supreme Court to 170 days. If thetrial or appeal is not finalized within theabove time frame, the defendant has thestatutory right to be released on bail but itwould not prejudice the ongoing trial.
3. Japan13
Article 37-1 of the Constitution of Japanguarantees the right to a speedy trial.
Furthermore, Article 253-2 of the Public
O f f i c e r s E l e c t i o n L a w, m a n d a t e scompletion of the trial within 100 days fromthe date of the institution of a case inrespect of election fraud and other election
related offences.
As per the statistics published by theSupreme Court of Japan, the average time
for the completion of trials by district courts
was 3.3 months in 1994 and 1995, while in1996 it was 3.2 months. The average
number of trial dates was 2.8 months. In
summary courts, the average time taken
for trial was 2.3 months in the aforesaid
years. The average number of trial dates
was 2.4 months. This means that thedisposal in summary courts was faster thanin the district courts.
4. Nepal
The Common Code (“Muluki Ain”) of
Nepal (Part II, Section 14) prescribes thetime frame for the completion of a trial by
the court. If the case pertains to an area
13 The White Paper on Crime, 1996, Government ofJapan, p. 7.

located adjacent the court; the time limit
is 6 months. This may be extended to 1 year
for cases wherein the cause of action lies
in remote and distant areas.
The Public Offences Act, 1972, empowers
the police to arrest a suspect without
warrant if he is found to be indulging instreet violence, teasing or the molestationof women, obstructing public servants intheir duties; disrupting public
transportation; power supply lines or postal
services; illegally occupying public property
or indulging in any acts harmful to thesociety, etc. The police are mandated to filethe charge sheet against the arrested
person within 7 days of arrest in the courtof Chief District Officer. As per this Act, if
the Chief District Officer does not complete
the trial within 90 days, the defendant will
be released on bail but the trial will not be
prejudiced. Section 6 of the Act, however,mandates the completion of trial within 90
days.
5. Republic of Korea14
The Republic of Korea has enacted a law,
the Special Act for Speedy Proceedings,
1981, which prescribes a time frame of six
months for the completion of a trial. The
Appellate Courts have four months within
which to complete the proceedings15.
It may be pointed out that noncompletion of trial in the above time frame
does not prejudice the trial. The available
data shows that only 55.3 percent of cases
were disposed of by the District Courts
within three months. This disposal was
70.6 percent in the Summary Courts.
However, within six months the disposal
14 The White Paper on Crime, 1993, Government of

Korea, p. 181.
15 Article 22 of said Act reads, “A judgement must be

pronounced within six months in the court of thefirst instance calculated from the day when the
public action was instituted, and within fourmonths in the court of other levels calculated fromthe day when the record of proceedings was sent”.

359

RESOURCE MATERIAL SERIES No. 53
in both the courts went up to, 97 percent
and 96.47 percent respectively.
6. United States of America16
The right to a speedy trial has beenguaranteed by the sixth Amendment in theConstitution of the U.S.A. It was followedby the Federal Speedy Trial Act, 197417.
According to the aforesaid Act, an
indictment or information is to bepresented to the defendant within 30 days
from arrest or issuance of summons, witha 30-day extension if no grand jury is insession. If the accused person pleads not
guilty, he must be brought to trial within
70 days, but not less than 30 day from thedate of information or indictment or fromthe date he appeared before a judicial
officer of the court in which the charge ispending, whichever of the dates occurs last.
In computing this time period, the Act
specifically excludes any period of delay
resulting from other proceedings
concerning the accused person, etc. The
U.S. Supreme Court while interpreting thelaw has recognized the right to a speedy
trial to be a relative one18.
The statistics published by the JusticeDepartment indicate that the average time
for trial disposal in U.S. federal courts was
8.2 months in 1993. Felony cases on
average took 9.5 months; violent offences
7.8 months; property offences 8.4 months;
drug offences 10.8 months; andmisdemeanors only 3.3 months. The time
taken was less in cases wherein a plea of
guilty was entered.

16 Compendium of Federal Justice Statistics, 1993,

In some countries, the law prescribes thetime frame for the commencement of thetrial from the time of arrest of the suspect.
There are also laws which set a time limit
for completion of trial. Our group is of theview that speedy trial is in the interest ofjustice and also protective of the humanrights of the defendant. It reflects on theefficiency of the criminal justice system.
The group feels that trials must becompleted with utmost speed but refrained
from prescribing any time frame as thiswould depend on the nature of the case,the legal framework, in which the trial isbeing conducted, geographical andinfrastructure-related factors.
In some of the countries where a common
law system is predominant, it inevitably
takes a certain period of time to completea trial by adversarial court proceedings.
Due process requires a hearing whereinboth parties present evidence to establish
the facts of the case, and the burden of
proof, lies with the prosecutor. It has been
observed however, that while “the search
for truth is best aided by allowing bothparties to argue the same question, theprocess is time-consuming”.
The group also emphasizes that thequality of trials should not be compromised,
for the sake of speed.
D. Causes of Delays in Trials
Our group in its deliberations consideredthat delays may be classified under four
categories:• court-related,• prosecution-related,• defense counsel-related, and• general.

U.S. Department of Justice, p. 44.
17 18 U.S.C.A. sections 1361-3174.
18 Criminal Justice Administration, by Frank. W.

Miller and Robert O. Dawson, p. 752, “The right ofspeedy trial is necessarily relative. It is consistent
with delays and depends upon circumstances. It
secures rights to a defendant. It does not preclude
the rights of public justice.”

360

1. Court-related Factorsa) The split trial process
Cases are generally tried on a piecemeal
basis. This means that the trial proceedings
are conducted in sessions spread out overa period of time. Usually one witness
testifies for an hour or less in one hearing

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
and then continues at the next hearing for“lack of material time”, a stereotype reason
stated.
b) Incompetence and ignoranceof the law
As a factor in unnecessary delay, ourgroup has considered the incompetence ofsome judges/magistrates. The failure tokeep abreast with the law andjurisprudence also causes undue delay,
particularly when a judge is unfamiliar
with the rules of procedure.
c) Heavy case load and poorcase flow management
Due to the increase in the population inmost countries and the deterioration of
economic conditions, considerable numberof new cases are added yearly to the alreadyovercrowded dockets of the courts. Thereseems to be a tendency to schedule cases
over a long lapse of time. This is so because
there are too many cases scheduled for agiven trial date and it is impossible for thetrial judge to hear them all. Those thatcannot be called are re-scheduled for someother date. As a result, only a few cases
are heard on any given trial date.
d) Delay caused by court
personnel
Delay may be caused by court personnel
who are unprofessional or who lack proper
managerial and technical skills. The
scheduling of cases, issuance of summons,record keeping, the retrieval of informationand the docketing of cases are done by court
staff, thus relieving the judges/magistratesof the “house keeping” chores of the court.
Since the jobs of court staff are interrelated,
the absence or incompetence of any one ofthem can scuttle trial proceedings, e.g., theabsence of a court stenographer will cause
the postponement of all the cases scheduled
for hearing and may delay the completionof records of proceedings for those casesthat are appeal.

2. Prosecution-related Factorsa) Inadequate preparation andlack of evaluation ofevidence
The excessive workload of a prosecutor
may result in inadequate preparation fortrial. Additionally, the lack of cooperation
between the prosecution and theinvestigating agencies would undoubtedly
result in non-production of exhibits and/or
witnesses during the trial date, hence
leading to adjournment.
b) Failure to show a clear
outline of proving cases
Failure by prosecutors to show a clear
outline as to how they intend to present
their cases, makes it difficult for the court
to allocate sufficient time to hear anddetermine cases. Factors such as
documentary evidence, statements of
witnesses and of the defendant should
enable prosecutor to calculate the numberof witnesses and the length of timenecessary for their respective testimonies.
3. Defense Counsel-related
Factorsa) Abuse of court process
Defense counsel are known to use
dilatory tactics to gain an advantage over
the opposing party. By filing unnecessary
motions for the review of court orders, a
defense counsel hopes that the prosecution
may lose interest in the case. Defense
counsel think that by prolonging the crossexamination of a material witness, he may
become tired and will simply disappear.
Other dilatory tactics include thepresentation of corroborative witnesses toprove matters that have already been
established; filing of writs for certiorari,mandamus or prohibition; and seeking areview of orders by a trial court.
b) Heavy volume of cases
The heavy volume of cases handled by adefense counsel eventually leads to361

RESOURCE MATERIAL SERIES No. 53
scheduling conflicts which, may result in
adjournments, thereby inadvertently
delaying court proceedings.
c) Incompetence and failure toprepareThe heavy case load of the defense
counsel may result in inadequate
preparation for trial. The defense counsel
thus unprepared for the trial may ask fora adjournment, thereby delaying thedisposition of the case.
4. Generala) Our group considered other generalfactors such as lack of discipline and moral
probity in the execution of different
functions. External pressure andinterference from politicians and/or othersenior government officials with vested
interests in particular cases and otherforms of malpractice such as corruption
within the criminal justice system werealso considered contributory tounnecessary delay in trials. In addition, thegroup observed that sufficient initial andcontinued professional training waslacking in the judiciary and theprosecution.
b) Our group observed that there is
wide-spread poverty and ignorance of thelaw in many developing countries, which
was identified as one of the factors
contributing to the delay in trials. The
group cited examples where a defendantor a witness could not travel to court due
to lack of bus fare or a means oftransportation. In some countries where
defense counsel is not provided thedefendant by the state, they apply for
adjournment on the ground that they werestill making arrangements for such defense
counsel. In this respect, the courts found it
difficult to deny them their constitutionalright to defense counsel and grant suchapplications.

362

E. Measures to Be Taken for the
Realization of Speedy Trial
To combat delay and reduce the court
backlog, our group considered the following
measures:1. To exercise better case control, thetrial court judges should conduct aninventory of their cases to determine
the actual number of cases pending
in their respective courts. The cases
could then be categorized into thosewhich are pending trial, thoseadjourned for judgement and thosewhich have been completed but are
pending appeal. It is, therefore,
important for judges to allocate theirtime so as not only hear anddetermine cases but also to disposeof pending cases.
2. With regard to effective court
management, the Supreme Court
should urge judges to observe strict
rules of punctuality and minimum
hours of daily work. The presiding
judges should closely supervise theirclerks of court to ensure that they
perform their functions in an
appropriate manner.
3. Judges should observe the rules ofprocedure regarding issues such as
restraining orders or preliminary
objections, and act promptly on all
motions and interlocutory
applications before the courts.
4. The courts should make appropriate
schedules for trials by seeking thecooperation of the parties concerned.
More than one court session shouldbe allocated in advance and mostdesirably on consecutive trial dates.
5. The prosecutor should be able tocalculate the time necessary topresent his case, and propose aconcrete schedule for the case. This
will enable the court to plan the timeframe for the cases with a view to
avoiding unnecessary delay in trial.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
6. Witnesses and exhibits should be
produced and tendered on therelevant dates. This objective may beachieved with the cooperation
between prosecutors and theinvestigating agencies. Additionally,
prosecutors must assure the securityof witnesses by ensuring that theirlegal rights are strictly observed
during their respective testimonies.
This security should be extended to
the witnesses before and even after
testimony to avoid possible
intimidation. Prosecutors should
therefore liaise with the investigating
agencies dealing with the case toachieve this objective.
7. O u r g r o u p o b s e r v e d t h a t f o reffectiveness and efficiency in theadministration of justice, there is aneed for professional training of
judges/magistrates and prosecutors
before they join their respective
professions. This will ensure that alllegal issues are addressed in view ofa fair application of the law.
8. The prosecutor should scrutinize thecase files by anticipating the rebuttalof the case by defense counsel.
IV. IS THE APPROPRIATESENTENCE IMPOSED ON
DEFENDANTS?
A. What Is Appropriate Sentence?
Appropriate sentence should reflect the
major objectives of punishment which
include retribution, general and specificdeterrence and rehabilitation.
The court has wide discretionary powers
in the selection of the type of punishment
considering the gravity of the offence andpersonality of the convict. The prosecutor
has professional duties as a representativeof the public interest to ensure that theappropriate sentence is meted out by the
court. It is for this reason that prosecutors
in most jurisdictions are required to assist
the court by disclosing as much informationas possible relating to sentencing, that is,the circumstances of the commission of theoffence and the personality of the convict.
B. Present Situation
1. An Overview of Sentencing
Process
The degree of involvement and the timeof such involvement by prosecutors insentencing, varies depending on the system
in application in different countries. In
some common law countries, the prosecutor
makes general recommendations relating
to sentencing at the end of the trial during
the closing statement/argument. Following
conviction, he is only expected to disclose
the past criminal record of the convict tothe court. In countries following the civil
law system, the prosecutor makes
recommendations which may be detailed
or not in his submissions to the court at
the end of the trial. The past criminal
record of the convict is contained in the casefile, which is transmitted to the trial judge
or magistrate before the commencement of
the trial.
Before imposing sentence, the court shallprovide the defense counsel an opportunity
to speak on behalf of the defendant andshall address the defendant personally to
ask him if he wishes to make a statement
or to present any information in mitigationof punishment. In some common law
countries, the pre-sentence inquiry is aprocedural step prior to sentencing at
which the judge of a court may examine
the pre-sentence report and all otherrelevant documents before imposing
sentence. Sentencing is a crucial stage ofcriminal prosecution requiring theassistance of an appointed defense counsel.
The prosecutor shall also have an
opportunity to speak to the court.
In Japan, during the trial, mitigating
circumstances are presented to the court
by the prosecutor and the defense counsel
respectively. The prosecutor submits, inaddition to the charge, any other363

RESOURCE MATERIAL SERIES No. 53
aggravating evidence such as the pastcriminal record of the defendant. On theother hand, the defense counsel may
produce witnesses to present mitigating
circumstances. In this case, the defense
counsel examines the witnesses in relation
to mitigating circumstances. In his closing
argument, the prosecutor makes a detailed
recommendation for specific punishment tobe determined by the court.
2. Involvement of Prosecutors
The prosecutor may be involved atvarious stages of criminal proceedings frominvestigation to sentencing:a) Plea bargaining
Plea bargaining in a criminal case is theprocess whereby the defendant and theprosecutor work out a mutuallysatisfactory disposition of the case subject
to court approval, which usually involves
the defendant’s pleading guilty to a lesser
charge or to only one or more of the countsof an indictment in return for a lighter
sentence than that possible for the graver
charge.

imposed on him. At this stage, in somecountries like Japan, the prosecutor
recommends specific punishment, that is,
the type of penalty, the nature and durationof the term of imprisonment and/or the sumof the fine.
d) Victim Impact Statement
In cases where the victim experiences
loss over and above the ordinary pain andsuffering, this fact may be revealed to thejudge after the defense has pleaded for
mitigation. The judge may take this into
consideration in sentencing. This is toensure a fair and equitable sentence. Thissystem is in practice in New Zealand andSingapore.

b) Examination of witnesses
As mentioned above, in some countries
like Japan, the defense counsel calls
witnesses (relatives, employers, friends,etc.) only to disclose mitigating
circumstances to the court. By examining
the witnesses, the prosecutor can ascertain
whether they present sufficient guarantees
that they will care for the convict.

e) Appeal
In most countries, the prosecutor canappeal to the higher court if the sentencepassed by the lower court is insufficient orexcessive in proportion of the gravity of theoffence. In case the defendant wassentenced to excessive punishment when
he was not represented at trial, theprosecutor may, to discharge his duty
impartially, appeal the sentence. In somecountries, namely, the Philippines and the
U.S.A., to protect the defendant fromdouble jeopardy, the prosecutor cannot
appeal in the event of an acquittal.
In addition to the above involvement,
prosecutors may collect evidence relating
to sentencing and select the appropriate
procedure and competent courts for
initiating prosecution.

c) Closing argument
The closing argument is the final
statement made by the prosecutor and thedefense counsel respectively to a jury, or
the court summing up the evidence thatthey think the other has failed to establish.
The prosecutor may disclose the pastcriminal record of the defendant and argue
that the defendant’s past record is not good,
therefore, maximum punishment should be

C. Problems in Obtaining
Appropriate Sentence
The following are some problems, which
adversely affect the appropriate sentence:
1. In some countries, the opinion of theprosecutor is not considered.
Opinions are divided as to whether
the prosecutor should participate in
the sentencing process. Our group
discussed the pros and cons of the364

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
matter and is generally of the viewthat the prosecutor should partake inthe process. This is because he is aunique position to provide the court
the viewpoints not only of the victim
but also the law enforcement
agencies. His intervention is alsoessential as he may restrain a judge
with a propensity for leniency. The
group was the opinion that legislativereform may be necessary in thosecountries where the prosecutor does
not enjoy such authority.
2. The prosecutor always requests forthe maximum punishment. In somecountries, especially in thosecountries where the prosecutor enjoys
enormous authority, he always
requests for the maximum
punishment for the defendant. Thisis a serious problem in sentencing.
Because of the system, someprosecutors cannot participate insentencing even when they wish to
do so.
3. The police and the prosecutor may
lack information about the pastcriminal record of the defendant. In
some developing countries, theprosecutor may find it difficult toobtain the past criminal record ofsome convicts due to poor
conservation of such records or lackof cooperation with the police.
4. Some prosecutors may be too ardent,
rigid and overzealous, thereby
affecting sentencing.
5. Prosecutors and judges face political,
social and other problems in somecountries in the form of undue
pressure and external interference.
Moreover, some of them purposely
involve themselves in various formsof malpractice, which adversely
affects sentencing.
6. The untimely and sudden transfer ofprosecutors is a problem in somecountries. In such a situation, theprosecutor handling a case may not
be able to complete the case, and may
not have the opportunity to brief theincoming prosecutor. The newprosecutor may not understand thecase so as to conduct the prosecution
efficiently.
7. It has been observed that the court
may impose heavy punishment on
one defendant and a lighter
punishment on another defendant,
even when they committed the sameoffences and they are similarly placedin life. When the convicts compare
notes with each other, such disparity
in sentencing may cause them somefrustration and bring into focus
discrimination in the sentencing
process.
D. Countermeasures
As underlined above, our group revealed
several problems in relation to appropriate
sentencing. In a country where the abovementioned problems prevail, necessary
measures should be taken for the effective
and efficient administration of criminal
justice. Bearing in mind the gravity of theabove problems, the group suggests thefollowing countermeasures from theperspective of the prosecutor, the defense
counsel and the court:
1. Adduce Sufficient Evidence,
Disclose Mitigating
Circumstances and Other
Information About the
Defendant to the Court
To assist the court in sentencing, theprosecutor should adduce sufficientevidence and disclose all information about
the defendant and the offence he is alleged
to have committed. It has been noted thatprosecutors often lack information about
the defendant’s past criminal record.
Similarly, the defense counsel may
contribute to a greater extent in obtaining
appropriate sentencing by disclosing all

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possible mitigating factors favorable to thedefendant. In some countries such as New
Zealand, Singapore and the U.S.A., thevictim of an offence is allowed to make astatement to the court as to the loss he has
suffered as a result of the commission of
the offence. The court may take theaforementioned statement into
consideration to determine the appropriate
sentence.
2. The Prosecutor Should File an
AppealWhere the prosecutor is dissatisfied withthe sentence of the trial court, he may
consider an appeal to the appellate courtwith a view to securing the appropriate
sentence for the convict. Such legal
provisions do exist in most jurisdictions andshould be used to as a remedy to disparity
in sentencing or to realize the objectives ofpunishment.
3. To Resist Undue Pressure andOther Forms of Malpractice
The prosecutor, the defense counsel andthe judge should resist undue pressure andall interference in a case. None of themshould try to take undue advantage. All ofthem should honestly adhere to the ethicsof their professions.
4. To Work in Good Harmony
The prosecutor and the defense counsel
usually resist till the end of a case in favorof their party, which is quite natural tosome extent. But, to obtain an appropriate
sentence, they should cooperate and work
together, instead of being rigid. They
should be flexible and objective.
5. Avoid Disparity in Sentencing
Disparity in sentencing is a serious
problem and may occur due to the personal
predilections of judges. The lack ofsentencing guidelines and the
nonavailability of data on sentencing by
superior courts aggravates the problem. It

366

is suggested that national training
programs and seminars should beorganized for judges, focusing on this
aspect. It may be useful to widely publish
important decisions in the media for judges
and prosecutors. Research is necessary to
determine the dimensions of the problem.
The issuance of sentencing guidelines by
the legislature or apex to the courts is
another viable option. Available data in
relation to sentencing should becomputerized for easy access to judges andprosecutors. Furthermore, as prosecutors
play an important role in sentencing, theyshould be conversant with sentencing
standards and assist the court in thisregard.
V. CONCLUSION
The importance of the role played by theprosecutor in a criminal trial cannot be
overemphasized. Adequate initial andcontinued professional training arenecessary for the efficient and diligent
performance of prosecutorial functions.
Furthermore, probity should be a requisite
for admission into the profession. The
prosecutor should adhere to theprofessional ethics throughout his career.
There is a need for sustained cooperation
between the prosecutor, the investigating
agencies, defense counsel, judges,
supporting staff and all persons involvedin the administration of criminal justice.
The quality of investigations, prosecution
and trial in some jurisdictions needs to be
improved.
The legal framework may require
substantial reforms to better respond toprevailing circumstances in different
countries, so as to meet the challenges
posed by the sophistication of crime andits transnational character resulting fromtechnological advancement. These reforms
can only materialize where there is a firm
political commitment and necessary funds
are made available by the competentauthorities.

107TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
The group fully understands andrespects the systems prevailing in different
countries. The political, social andeconomic conditions of some countries may
not be conducive to the implementation ofsome of the measures proposed. The
intention of the group is to makemeaningful contributions with a view to
optimizing the efficacy of the different
systems and practices.

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No. 53

II. The Ninth Meeting of the Ad Hoc Advisory Committee ofExperts on UNAFEI Work Programmes and Directions

UNAFEI

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THE NINTH MEETING OF THE AD HOC ADVISORY COMMITTEE OF EXPERTS
ON UNAFEI WORK PROGRAMMES AND DIRECTIONSREPORT OF RECENT ACTIVITIES AND FUTUREPERSPECTIVES OF UNAFEITHE NINTH MEETING OF THE AD HOC ADVISORY COMMITTEE OF
EXPERTS ON UNAFEI WORK PROGRAMMES AND DIRECTIONSOCTOBER 27, 1997

Toichi Fujiwara*
Mr. Chairperson,
Distinguished Members of the Ninth Meeting of the Ad Hoc Advisory Committee,
Ladies and Gentlemen,
As the Director of UNAFEI, the Asia and Far East Institute for the Prevention of
Crime and the Treatment of Offenders, it is my great privilege and honor to introduce
the recent activities of our Institute. In this report, I would like to focus upon our activities
since the last Meeting of the Ad Hoc Advisory Committee in March of 1992.
I. INTRODUCTION
1. UNAFEI was established in Tokyo, Japan in 1961 pursuant to an agreement between
the United Nations and the Government of Japan. Its goal is to contribute to soundsocial development in the Asia and Pacific region by promoting the prevention of crime
and the improvement of criminal justice administration through training and research.
Since its foundation, UNAFEI has been placing the highest priority on the training of
criminal justice personnel of the region. At the core of the Institute’s various activities
are the 2 three-month International Training Courses and the 1 five-week International
Seminar which are conducted annually.
2. During its 36 years of existence, UNAFEI has conducted a total of 107 international
training courses and seminars, in which more than 2,593 criminal justice personnel
have participated, representing 89 different countries not only from the Asia-Pacificregion but also from the Middle and Near East, Latin America and Africa. UNAFEI
participants are selected from among experienced practitioners and top-level
administrators holding senior positions in their respective countries. Thus, UNAFEI
alumni play leading roles and hold important posts in the fields of crime prevention
and the treatment of offenders in their countries.
3. In addition to these international training courses and seminars, UNAFEI has
conducted a considerable number of seminars with the cooperation of other governments,
dispatching UNAFEI staff members overseas. Moreover, UNAFEI has undertaken
several research projects and has published the results of such research as well as theresults of the training programmes. Thus, the Institute has been endeavoring to fulfill
the important responsibilities entrusted to it by the countries in the region and theUnited Nations.

* Director of UNAFEI.

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II. TRAINING PROGRAMMES AT UNAFEI
4. When the Director of UNAFEI reported to the members of the last Meeting of the Ad
Hoc Advisory Committee in March 1992, the total number of participating countries in
the UNAFEI international training courses and seminars was 67 and the total numberof participants was 2116. In comparison, presently, the corresponding number of countries
is 89—increasing by 22 over the last five and half years. Additionally, during the same
period, the total number of participants to these training programmes (91st Course
through 107th Course) increased from 2116 to 2593.
5. UNAFEI training programmes have four distinct characteristic features:a. Practice-oriented programmeFirst of all, the training programmes are organized with particular attention to theactual conditions and urgent problems in the administration of criminal justice in theregion. Socio-economic changes have generated the increasing number of crimes andjuvenile delinquency and crimes have become more sophisticated, organized andinternationalized. Moreover, there exist such persistent problems as the low detection
rate of crimes, the inordinate delay in investigation and trial proceedings, prison
overcrowding, insufficient treatment programmes for offenders and the high rate ofrecidivism. Thus, by selecting these problems as the main themes and topics for the
training courses and seminars, the Institute has attempted to reflect the changing andcontemporary needs of the region. At the same time, UNAFEI has paid the utmost
attention to the priority themes identified by the Crime Prevention and Criminal Justice
Programme of the United Nations, which reflect common and urgent problems
throughout the world. Moreover, the participants comprise experienced practitioners
from the different criminal justice fields. As a result, current problems are identified
and practical solutions to the problems are discussed and recommended in the training
programmes.
b. Integrated approach
The second feature is an integrated approach to the criminal justice system as awhole. UNAFEI usually chooses themes or topics which are relevant to and inter-relatedwith every field of the criminal justice system, recognizing that the improvement ofcriminal justice administration in its entirety can only be realized through systematiccooperation among different related agencies. Consequently, the composition of theparticipants is unique, representing a variety of professions. This wide variety enables
the participants to examine issues and problems from different angles and discuss
solutions from the various perspectives of the whole criminal justice system. Thus, theInstitute has encouraged participants to pay special attention to the need for coordinating
policies and practices between all related agencies of their respective criminal justicesystems.
c. Participant-centered process
The third point is a participant-centered process. Of course, the UNAFEI faculty
actively assist participants in obtaining productive training results by sharing theirknowledge of different criminal justice systems, delivering lectures and giving advice inthe group discussions. Visiting experts also impart their broad knowledge and extensive
experience to the UNAFEI participants.

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However, another equally beneficial way for participants to learn is from each other,since all the participants have considerable practical experience in the criminal justicefield and a high level of professional integrity. Through the individual presentations
and the group workshops, participants are expected to identify common problems andto work out their suitable solutions primarily by themselves, based upon theirprofessional knowledge and experience.
d. Family atmosphere
The fourth feature concerns our family atmosphere. Since the participants live together
for an extended period of time during the UNAFEI programme, a real sense of family
and unity is fostered among them. This atmosphere deepens the understanding among
participants from different nations and professional backgrounds, thus furthering thetraining results and creating lifelong friendships well beyond national boundaries.
Furthermore, the pleasant memories and recollections about UNAFEI strongly tie its
alumni together in many countries regardless of the differences in the training
programmes they attended. Thereby, the exchange of information and coordination
among different criminal justice agencies are promoted and international cooperation
can be facilitated.
A. International Training Courses
6. The International Training Courses, which last for three months, are organized toprovide participants with ample opportunities to discuss common contemporary issues
and problems in the field of crime prevention and criminal justice. In each training
course, 15 to 20 overseas participants and about 10 Japanese participants are invited
to UNAFEI. They hold relatively high senior positions in their respective professions.
The training courses have been divided into two kinds: courses on the treatment ofoffenders (spring) and courses on the administration of criminal justice (autumn).
Primarily, the training course curriculum is composed of the individual presentations
by each participant, lectures of visiting experts, ad hoc lecturers and faculty, and group
workshops. These programmes are supplemented by observation visits and study tours
to various agencies including the police, public prosecutors offices, the courts, andcorrectional and rehabilitation institutions.
7. In each training course, under the guidance of the UNAFEI faculty and visiting
experts, participants identify current problems and discuss countermeasures andrecommendations, taking differences in criminal justice systems and practices into
consideration. They draft reports of their discussions in the group workshops, which
are later published in the UNAFEI Resource Material Series, along with selected papersof the participants and the visiting experts’ papers.
8. The main themes of the international training courses since April 1992 are as follows:
1992: • Further Use and Effectual Development of Non-Custodial Measures for
Offenders (91st International Training Course)• Quest for Effective Methods of Organized Crime Control (92nd International
Training Course)

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1993: • Current Problems in Correctional Treatment and Their Solution (94thInternational Training Course)• Effective Countermeasures against Crimes Related to Urbanization andIndustrialization—Urban Crime, Juvenile Delinquency and Environmental
Crime (95th International Training Course)
1994: • Effective Treatment of Drug Offenders and Juvenile Delinquents (97thInternational Training Course)• Economic Crime and Effective Countermeasures against It (98thInternational Training Course)
1995: • The Institutional Treatment of Offenders: Relationships with Other
Criminal Justice Agencies and Current Problems in Administration (100th
International Training Course)• The Fair and Effective Administration of Criminal Justice: The Proper
Exercise of Authority and Procedural Justice (101st International Training
Course)1996: • Improvement of the Treatment of Offenders through the Strengthening of
Non-Custodial Measures (103rd International Training Course)• International Cooperation in Criminal Justice Administration (104th
International Training Course)
1997: • The Quest for Effective Juvenile Justice Administration (106th International
Training Course)• The Role and Function of Prosecution in Criminal Justice (107th
International Training Course)
B. International Seminars
9. The International Seminars are attended by top administrators, department heads,
senior prosecutors and judges who work at the policy-making level; generally 20 to 25
overseas participants and about 6 Japanese participants. The programmes of theseminars mainly consists of individual presentations by each participants, lectures byvisiting experts and ad hoc lecturers, and general discussions. These programmes aresupplemented by observation visits and study tours to criminal justice agencies.
10. The individual presentations and general discussion sessions are carried out almostin the same manner as the individual presentations and the group workshops in the
training course. Also, the results of the general discussion sessions are carried in the
UNAFEI Resource Material Series, along with selected papers of the participants andthe visiting experts’ papers.
11. The main themes of the international seminars since April 1992 are as follows:
1993: • Policy Perspective for Organized Crime Suppression (93rd International
Seminar)1994: • Promotion of International Cooperation in Criminal Justice Administration(96th International Seminar)
1995: • The Effective Administration of Criminal Justice: Public Participation and
the Prevention of Corruption (99th International Seminar)
1996: • Crime Prevention through Effective Firearms Regulation (102nd
International Seminar)

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ON UNAFEI WORK PROGRAMMES AND DIRECTIONS
1997: • The Effective Administration of Criminal Justice for the Prevention of
Corruption by Public Officials (105th Seminar)
C. Summaries of Specific Courses and Seminars: Past, Present and Future
12. From 29 January to 1 March 1996, the 102nd International Seminar took up thecontemporary issues of firearms regulations. Thirty-one participants from 24 countries
attended this Seminar. Being fully aware of the United Nations’ role in this field, UNAFEI
selected as the main theme of the Seminar, “Crime Prevention through Effective Firearms
Regulation”; thus implementing the resolution “Firearms and Regulation for Purposesof Crime Prevention and Public Safety” adopted by the Ninth United Nations Congressin Cairo, Egypt in April 1995. The Seminar participants introduced and explained theircountries’ situation regarding firearms regulation and actively exchanged opinions inorder to explore some effective measures to regulate firearms applicable to participating
countries. They discussed important issues such as the enhancement of investigation
techniques, the detection of smuggling by border control, international cooperation, theappropriate qualifications for possessing firearms, effective prosecution and sentencing,and cooperation from the general public. Acknowledging wide differences in the social,political and economic backgrounds of each country, the participants reconfirmed thateach state has the responsibility to protect the life and property of its people byimplementing appropriate firearms regulations which are suitable to each country.
13. The 103rd International Training Course, “Improvement of the Treatment of
Offenders through the Strengthening of Non-custodial Measures”, was conducted from15 April to 5 July 1996. Twenty-eight participants representing 18 countries reviewed
the current situation and problems in the implementation of non-custodial measures
for the treatment of offenders, and sought practical solutions to them, paying due respect
for the United Nations Standard Minimum Rules for Non-custodial Measures, the socalled Tokyo Rules. It was agreed that prisons in various parts of the world suffer fromovercrowding problems as a result of the excessive use of custodial measures and theinsufficiency or nonexistence of non-custodial measures for the treatment of offenders.
It was reaffirmed that since non-custodial measures are effective for rehabilitating
offenders, as well as alleviating the overcrowding problems of prisons, such measures
should be extended and strengthened at every stage of criminal justice, striking a balancewith such traditional objectives of punishment as retribution, deterrence andrehabilitation.
14. UNAFEI welcomed 32 participants from 20 countries in the 104th International
Training Course (held from 2 September to 22 November 1996). Discussions of the main
theme, “International Cooperation in Criminal Justice Administration” involved such
topics as mutual assistance, extradition and the transfer of foreign prisoners. The
participants made full reference to the United Nations Manuals on the Model Treaty on
Extradition and on the Model Treaty on Mutual Assistance in Criminal Matters.
Traditionally, in the field of international cooperation, the conflict between so-called
treaty prerequisite countries and treaty non-requisite countries has been an unsolved
difficult issue. This has hampered cooperation in criminal justice administration at theinternational level and, perhaps of greatest concern, has enabled criminals to evade
justice. The participants of the 104th Course concluded that extradition arrangements
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but also on the basis of reciprocity. In other words, even between countries without atreaty, extradition or mutual assistance should be realized by amending domestic laws
and taking a flexible attitude on the principle of reciprocity. Additionally, during thisTraining Course, the Asia Crime Prevention Foundation and UNAFEI held a Working
Group on Extradition, inviting many eminent experts.
15. From 27 January to 28 February 1997, 25 participants from 19 countries attended
the 105th International Seminar and took up the contemporary issues of corruption.
Being fully aware of the United Nations’ role in this field, UNAFEI selected as the main
theme of the Seminar, “The Effective Administration of Criminal Justice for thePrevention of Corruption by Public Officials.” In many countries, corruption exists at
various levels of government. The criminal justice agencies of some countries haveactively tackled this problem and produced successful results. On the other hand, in alarge number of countries, corruption is still prevalent and law enforcement agencies
have not established the required countermeasures to effectively tackle and deter thecrime. The Seminar participants respectively introduced their countries’ experiences
regarding corruption, and analyzed the causes and dynamics of corruption in order toseek concrete measures for its eradication.
16. UNAFEI conducted the 106th International Training Course (from 14 April to 4
July 1997) with the main theme, “The Quest for Effective Juvenile Justice
Administration.” This Course consisted of 29 participants from 19 countries. The
Institute’s selection of this theme reflects its concern that juvenile delinquency is
becoming increasingly serious and rampant in the world, and that juveniles committing
heinous offences are becoming younger and younger and coming from all walks of life.
Criminal justice practitioners should seriously cope with such situations by improving
the juvenile justice administration. The participants identified the causes and natureof juvenile delinquency and searched for effective countermeasures and prevention
activities. Also considered were the proper dispositions and treatment programs forjuvenile delinquents, making reference to the role, use and application of the United
Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing
Rules).
17. At present, UNAFEI is conducting the 107th International Training Course withthe main theme, “The Role and Function of Prosecution in the Criminal Justice.” This
Course consists of 29 participants from 19 countries. Although the degree of prosecutors’authority and responsibility varies from country to country, it is commonly recognizedthat they play a crucial role in the effective and efficient administration of criminal
justice. There are a large number of countries which suffer from a low conviction rate
due to insufficiency of investigation and inefficiency of prosecution; as well as prison
overcrowding due to delayed proceedings in investigation and trial and the lack ofalternative ways to dispose of the criminal cases. Based on such actual and specificproblems faced by each country, the 107th Course participants are exploring solutions
to further improve prosecution systems and practices from the prosecutor’s point ofview, which would thereby contribute to the development of the whole criminal justicesystem. Particularly, during this Training Course, the role and function of prosecutors
at the stages of investigation, initiation of prosecution and trial are being extensively
deliberated.

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18. UNAFEI will hold the 108th International Seminar from 26 January to 27 February
1998, inviting about 20 overseas and 6 Japanese participants. The Seminar will focus
on the main theme, “Current Problems in the Combat of Organized Transnational Crime,”
recognizing that the Tenth United Nations Congress on the Prevention of Crime andthe Treatment of Offenders will take up the issue as an important theme. In light of thegrowing threat by organized transnational crime at both national and international
levels, the Seminar will examine the current situation of organized transnational crime
and legislation against such crime as well as the problems faced by criminal justiceagencies.
D. Special Seminar for Senior Officials of the People’s Republic of China
19. From 10 to 29 July 1995, UNAFEI—under the sponsorship of ACPF—conducted a
special seminar for 30 high-ranking and influential officials from the People’s Republicof China involved in the field of criminal justice. The participants represented theSupreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public
Security and the Ministry of Justice. They and the UNAFEI faculty discussed specificproblems particularly faced by Chinese criminal justice administration and exploredpractical solutions to such problems.
20. In light of the successful realization of this Seminar and the strong request madeby the Chinese Government, the Special Seminar for Senior Officials of the People’s
Republic of China was conducted the following year, from 2 to 20 December 1996, under
the sponsorship of JICA. On this occasion, 10 high-ranking Chinese officials from thesame fields of criminal justice mentioned above participated. They and the UNAFEI
faculty comparatively discussed the problems faced by Japan and China, placingemphasis on corruption issues. Another similar Special Seminar will be held from 1 to
19 December of this year and particular attention will be given to juvenile justice issues.
III. OVERSEAS SEMINARS
A. Joint Seminars
21. Since 1981, UNAFEI has conducted 17 joint seminars under the auspices of JICA
and in collaboration with host governments in Asia including China, Fiji, Indonesia (2),the Republic of Korea, Malaysia (2), Nepal, Pakistan, Papua New Guinea (2), thePhilippines (2), Singapore, Sri Lanka (2) and Thailand. Joint Seminars are held on alarge scale (inviting about 100 participants) and are customarily attended by national
cabinet members such as Ministers of Justice. With the participation of policy-makers
and high-ranking administrators, including members of academia, the joint seminars
attempt to provide a discussion forum in which participants can share their views andjointly seek solutions to various problems currently facing the criminal justiceadministration in the host country. Discussion topics based on such problems include
public participation in crime prevention, the prevention of juvenile delinquency, drugtrafficking, organized crime, fair and speedy trial, overcrowding, the effective
institutional treatment of offenders, and the strengthening of non-institutional measures.

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22. UNAFEI contributes to these joint seminars by carefully selecting the discussion
topics in advance, delivering lectures and actively participating in the discussions. In
this respect, these seminars are also marvelous opportunities for UNAFEI to convey
and disseminate the fruitful results of the UNAFEI programmes. The host country caneffectively benefit from the knowledge and expertise which UNAFEI has accumulated
through its training programmes and research. Moreover, since participants fromdifferent fields of criminal justice system attend the joint seminars, the so-called
integrated approach is readily taken to identify problems and discuss solutions. In
principle, the Institute conducts a seminar once a year. In March 1998, the BangladeshUNAFEI Joint Seminar will be held in the capital city of Dhaka. About 80 criminal
justice officials of the country are expected to attend. Additionally, preparatory
discussions have already been made toward the organization of a joint seminar with
India in fiscal year 1998.
B. Other Overseas Seminars
23. In addition to the Joint Seminars, UNAFEI frequently and actively participates inother seminars overseas. This month, under the financial assistance of JICA, UNAFEI
dispatched two professors to Kenya. They assisted the Kenyan Government in holding
a seminar on crime prevention and the treatment of juvenile delinquents. They
researched the actual needs in the criminal justice fields in Kenya and contributed tothe seminar by delivering lectures and giving advice during discussion sessions.
24. Since 1989, UNAFEI has actively assisted the Latin American Institute for thePrevention and the Treatment of Offenders (ILANUD) in organizing regional seminars
in Costa Rica entitled “Effective Countermeasures against Drug Offences andAdvancement of Criminal Justice Administration”. In the past, 10 seminars have been
held (approximately once a year) with the cooperation of JICA and the Government of
Costa Rica. Each two-week seminar is attended by about 20 participants from Latin
America and the Caribbean, mostly high-ranking judges, public prosecutors andadministrators. They have focused on drug problems within the context of suchcontemporary issues as money laundering, international cooperation, the prevention of
drug abuse and the treatment of drug offenders.
25. Since 1992, UNAFEI has sent two experts to Thailand each year to assist the Officeof the Narcotics Control Board (ONCB) in organizing regional training courses entitled“Effective Countermeasures against Drug Offences and the Advancement of Criminal
Justice Administration”. Thus far, five courses have been held with the cooperation of
JICA and the Royal Thai Government. Approximately 20 participants from various
Asia-Pacific countries have attended each two-week course and have discussed drugrelated issues and identified the actual problems in the participating countries.
Discussion topics in the courses have included the improvement of investigativetechniques, effective measures against money laundering, the implementation of theVienna Convention, international cooperation, and the treatment of drug offenders.

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IV. RESEARCH AND PUBLICATIONS
26. Research is also one of the important activities of UNAFEI. Its staff members havemade great efforts to conduct research both inside and outside of the Institute. They
have regularly visited overseas countries to study and research the actual situation incrime prevention and criminal justice administration. The useful results of such research
are reflected in the comparative studies of the training programmes and other UNAFEI
activities.
27. The Institute is particularly conscious of the actual crime situation in the AsiaPacific region. The UNAFEI faculty has been striving constantly to collect useful statistics
and other pertinent data as a part of its daily research activities. These efforts havecrystallized into such UNAFEI publications as “Asia Crime Report No.1” (1993), which
compiled extensive data regarding nine Asian countries. “Crime Trends in Asia and thePacific” (1995), another publication, represents efforts by UNAFEI to keep theinternational community abreast of the actual crime situation in the Asia-Pacific region.
It incorporates the Fourth United Nations Survey of Crime Trends and Operations of
Criminal Justice in the region and was submitted to the Ninth United Nations Congresson the Prevention of Crime and the Treatment of Offenders held in Cairo, Egypt inApril 1995.
28. Comparative studies are undertaken by the Institute as well on criminal justicesystems and practices in the region. For example, “Criminal Justice Profiles of Asia”,
published in 1995, complies the salient features of investigation, prosecution and trialin 12 countries. In the near future, the Institute intends to publish the results of twoother comparative research projects conducted in the fields of corrections and probation
respectively.
29. The publications of the Institute are designed to meet the practical needs (including
training) of criminal justice personnel. Since 1971, the Institute has published 50 editionsof the UNAFEI Resource Material Series. They contain informative papers byparticipants, visiting experts and faculty members of UNAFEI as well as the discussions
results in the Group Workshops and General Discussion Sessions. The Institute also
has been issuing the UNAFEI Newsletter, in which a brief report of each training
programme and other timely information are incorporated. Additionally, UNAFEI has
published ten editions of “Ajiken Shoho”, a report of UNAFEI activities in the Japanese
language, since December 1991.
30. Apart from such regular publications, UNAFEI has published “Criminal Legislationof Japan” (1993). In commemoration of the 100th UNAFEI International Training Course,“The History of 100 International Training and Seminar Courses at UNAFEI” (1995)
was published to provide an overview of the Institute’s history.

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V. OTHER UNAFEI ACTIVITIES
31. UNAFEI cooperates and collaborates with ACPF to further improve crime prevention
and criminal justice administration in the region. Since UNAFEI and ACPF have many
similar goals and a large part of ACPF’s membership consists of UNAFEI alumni, therelationship between the two is strong. Some examples of cooperation and collaboration
can be seen as follows:a. UNAFEI has assisted ACPF extensively in all its World Conferences, as both acoordinator and a contributor, including the Sixth ACPF World Conference which
will be held in Tokyo from 28 to 31 October 1997. Additionally, the participantsof the 107th International Training Course will attend the Symposium to be heldon October 29 which focuses on the theme of prosecution.
b. An ACPF Working Group meeting was held at UNAFEI in October 1996, and the104th Course participants joined the meeting to discuss international cooperation.
Also, a UNAFEI faculty member attended another ACPF Working Group meeting
held in Malaysia in May 1997 regarding international cooperation and drugrelated crimes.
c. UNAFEI dispatched faculty members to Manila to collaborate with ACPF andAsia Crime Prevention Philippines, Incorporated (ACPPI) in establishing thefirst halfway house in the Philippines. (Established in June 1997.)
d. To proceed with an ACPF project to foster volunteer leaders in the crime
prevention field, UNAFEI sent two professors to Thailand in December 1995
and one professor to Papua New Guinea in December 1996.
32. In November 1992 and June 1994, UNAFEI organized at the Institute two workshops
on computerization of criminal justice information systems. The results of the workshops
were presented to a workshop in the Ninth United Nations Congress held in Cairo in
1995.
33. Under the auspices of JICA, UNAFEI has dispatched its faculty members once
every few years to conduct follow-up studies of its training programmes. UNAFEI alumni
have brought back new knowledge and ways of thinking to their respective homecountries and have utilized such training results to improve their respective criminal
justice systems and practices. By researching and evaluating the impact of training
results to actual situations, enhancements to the future training programmes can be
made. In October 1996, two UNAFEI faculty members visited Peru and Venezuela toconduct such a follow-up study. To assess the effects and results of the programmes,
questionnaires were distributed to UNAFEI alumni and their working agencies, andinterviews were also conducted. The follow-up study provided UNAFEI with valuable
information in order to better grasp training needs and enhance training.
34. UNAFEI staff tries to meet with alumni to exchange opinions for the developmentof criminal justice administration when traveling overseas. On these occasions, UNAFEI
provides a forum where alumni from different criminal justice fields can meet and talk,thereby contributing to the enhancement of coordination among them for promoting
the aims of criminal justice. Alumni meetings have recently been held on the following
occasions:380

THE NINTH MEETING OF THE AD HOC ADVISORY COMMITTEE OF EXPERTS
ON UNAFEI WORK PROGRAMMES AND DIRECTIONS• Bangladesh in August 1996,• China in September 1996,• Peru and Venezuela in October 1996,• Hong Kong in January 1997,• Indonesia, Singapore, Malaysia and Thailand in July 1997,• Costa Rica in August 1997, and• Kenya in October 1997.
35. UNAFEI is now assisting the International Penal and Penitentiary Foundation(IPPF) in organizing the latter’s Eighth Colloquium, which is scheduled to be held at
UNAFEI in January 1998. IPPF is an international organization which has as its aim
the promotion of studies in the field of the crime prevention and the treatment ofoffenders, especially by scientific research, publications and teaching.
VI. FINANCES AND ADMINISTRATION
36. In 1970, the Government of Japan assumed full financial and administrative
responsibility for running the Institute. The director, deputy director and sevenprofessors are selected from among public prosecutors offices, the judiciary, corrections
and probation. UNAFEI also has approximately 20 administrative members, who areappointed from among officials of the Government of Japan, and a linguistic adviser.
Each year, about 20 visiting experts from abroad are invited by the Ministry of Justiceto each training course or seminar (For example, 5 experts in the 105th International
Seminar, 7 in the 106th International Training Course, and 7 in the 107th International
Training Course). The Institute has also received valuable assistance from various
other experts, volunteers and related agencies in conducting its training programmes.
37. The Institute’s budget is primarily provided by the Ministry of Justice. The total
amount of the UNAFEI budget is approximately ¥350 million this year. JICA also
provides financial assistance for the Institute’s international training courses andseminars. Participants from various overseas countries receive fellowships from JICA
which cover their travel expenses and meal and accommodation costs, and provide adaily subsistence allowance. JICA also sponsors UNAFEI’s joint and regional seminars
by bearing such expenses as the rental fee for the seminar sites and air fare fordispatching overseas experts from Japan.
38. ACPF is another constant and reliable supporter of UNAFEI activities through its
financial contributions. ACPF hosts friendship parties for the UNAFEI participants toprovide opportunities for the international exchange of ideas. ACPF kindly invites the
UNAFEI participants to their branches located in various prefectures. The Foundation
also assists the UNAFEI participants in experiencing Japanese cultural activities.
Additionally, ACPF financially assists UNAFEI staff in visiting overseas countries.

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VII. GOALS AND PROSPECTS FOR THE FUTURE
A. Research and Publications
39. UNAFEI fully recognizes the importance of research activities and has taken
advantage of its uniquely advantageous position as a regional institute which invites anumber of criminal justice officials from various countries. Research activities areindispensable to making the training programmes more productive and fruitful.
Furthermore, UNAFEI is in the position to provide criminal justice officials in the region
with comprehensive and current information. Although UNAFEI places its first priority
on enhancing its training programmes, research has never been neglected nor treatedlightly. Thus, UNAFEI continues to make the utmost efforts to implement research
projects.
40. UNAFEI serves as a clearinghouse of information on crime prevention and criminal
justice administration in the region. In this regard, the Institute regularly surveys thecrime situation in the Asia-Pacific region and publishes the research results. UNAFEI
also continues to conduct comparative research in the various fields of criminal justicesystems and practices, focusing on the current situation, problems and theircountermeasures. The Institute aims to compile and publish the results. Towards thisgoal, UNAFEI alumni should be encouraged to conduct research or to find appropriate
resource persons to fulfill this task. For those who contribute to such research activities,
financial assistance should be provided to complete the research and publish the results.
41. Since the work products of the training programmes themselves are valuable
resources of comparative study, UNAFEI has been compiling such training results as
reference material. Primarily, these efforts have been realized through the Resource
Material Series.
42. The Institute is in the process of updating the library and information services.
Collecting the most current criminal justice publications and legislations of various
countries is one important project to complete. Another scheme is to provide suchnecessary information on the internet. Presently, UNAFEI publications are sent by
mail to its alumni and other concerned individuals and organizations twice a year.
However, UNAFEI is considering to make its publication materials available on theinternet, so as to widen the scope of its audience and disseminate information in a more
timely manner.
B. Staff Intensification
43. The professors of UNAFEI consists of criminal justice professionals seconded by
the Government of Japan from the fields of prosecution, the judiciary, corrections andrehabilitation. However, the Institute has never been provided with police officers as apart of its regular teaching staff. Since the United Nations Crime Prevention andCriminal Justice Programme has been increasingly placing emphasis on the preventionof various types of crimes and their control, the themes and features of UNAFEI training
programmes have turned in the same direction. This necessitates the attendance ofpolice officers as lecturers as well as participants. UNAFEI continues to invite regularly
a representative from the police as a lecturer to meet training needs. However, in lightof the considerably large number of overseas participants from the police, it is desirable
that professors from the police give day-to-day advice to the participants.
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44. Those who are assigned as UNAFEI staff have an international outlook or a senseof internationalism. Its faculty members are given opportunities to go abroad and to
experience various activities in an international setting. Considering the role and functionof UNAFEI as a regional training and research institute, its teaching staff should makecontinued efforts to develop their knowledge of criminal justice systems and practices
as well as communication skills.
C. Establishment of UNAFEI Branch in Osaka
45. UNAFEI has established its status as an affliated regional institute of the United
Nations for crime prevention and criminal justice and has enjoyed a high reputation for
its quality programmes. As a result, it has been repeatedly pointed out that the numberof UNAFEI programmes and participants should be increased to a great extent. However,presently, UNAFEI yearly conducts 2 three-month training courses, 1 five-week seminar,
1 special three-week seminar for high-ranking Chinese government officials, and 1
overseas joint seminar for two weeks. The entire UNAFEI staff is involved in theimplementation and preparation of these programmes, which nearly occupy a wholeyear. Thus unless the UNAFEI staff is increased, it will be very difficult for the Instituteto expand its programmes and continue to maintain the same level of quality expectedby the international community. Moreover, the accommodation capacity in the UNAFEI
dormitory is also limited. Considering these limitations in human resources and facilities,
the Ministry of Justice is planning to establish a UNAFEI branch in the city of Osakaby 1999 in order to increase the number of UNAFEI programmes. I am hopeful that the
project will successfully proceed and an entirely new programme will be additionallyorganized in the new environment.
D. Strengthening the United Nations-UNAFEI Relationship
46. As you know, the Government of Japan has assumed full financial and administrative
responsibility of UNAFEI. However, since it is still an affiliated regional institute of
the United Nations, UNAFEI maintains a close relationship with the United Nationsin the following ways:a. The director of UNAFEI is assigned in consultation with the United Nations.
b. The programmes of the Institute duly respect and reflect the United Nations
Crime Prevention and Criminal Justice Programme, taking up the agendas of
the Programme as its training themes and thus providing opportunities to discussappropriate measures for implementing United Nations instruments.
c. UNAFEI submits an annual report to the United Nations, informing it of theInstitute’s activities.
d. As one of the regional institutes of the United Nations, UNAFEI attends theUnited Nations Congress on the Prevention of Crime and the Treatment of
Offenders. The Institute also participates and makes statements every year at
the Commission on Crime Prevention and Criminal Justice.
e. UNAFEI has invited criminal justice professionals as visiting experts from theUnited Nations and its related agencies including UNAFEI’s sister institutes sothat UNAFEI can benefit from their guidance and lectures.

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47. Additionally, UNAFEI has recently extended its support to the efforts by the United
Nations Crime Prevention and Criminal Justice Programme Network to establish“UNOJUST”, a computer network which will make readily available online criminal
justice resources and will enhance collaboration among the members of the Network.
48. UNAFEI believes that its steady and continued activities in line with the generalpolicy of the United Nations are most conducive to the countries in the region. Therefore,
the Institute intends to strengthen and develop its relationship with the United Nations.
VIII. CONCLUSION
49. The present staff of UNAFEI has endeavored to continue in the fine tradition of
excellence and achievement which has been established since 1961 by the United Nations,
the Government of Japan, the countries of region, and its predecessors. We are making
the utmost efforts to maintain and develop the successful administration of UNAFEI
programmes. UNAFEI, as an affiliated regional institute of the United Nations, hastaken up contemporary and urgent issues in its training programme themes, respecting
the United Nations Programme and paying close attention to the actual needs of the
Asia-Pacific region. In this way, the Institute contributes to countries of the region bypromoting the sound development of their respective criminal justice administrations.
UNAFEI invites criminal justice practitioners to its training courses and seminars to
identify actual problems and discuss solutions. Such a practice-oriented and problemsolving approach has been most beneficial to the participating countries’ crime prevention
and criminal justice administrations. UNAFEI will maintain this fundamental attitudeunder the support of the United Nations, the Government of Japan, the countries of theregion, JICA and ACPF. Moreover, the Institute will continue to upgrade its training
and research activities and intensify its staff and organization. By taking up actual
criminal justice issues in its training programmes, UNAFEI will further strive for the
improvement of crime prevention and criminal justice administration in the region.

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ON UNAFEI WORK PROGRAMMES AND DIRECTIONSREPORT OF THE NINTH MEETING
OF THE AD HOC ADVISORY COMMITTEE OF EXPERTS
ON UNAFEI WORK PROGRAMMES AND DIRECTIONSFUCHU, TOKYO, JAPAN 27 OCTOBER 1997
INTRODUCTION
The Asia and Far East Institute for the Prevention of Crime and the Treatment of
Offenders (UNAFEI) convened the Ninth Meeting of the Ad Hoc Advisory Committee ofExperts on the 27th day of October 1997. It was held during the 107th International
Training Course and on the eve of the Sixth ACPF World Conference. It was convened
for the purpose of reviewing, evaluating and assessing the work accomplished by UNAFEI
in the past and to consider proposals to improve and enhance future programmes.
In attendance were representatives from the United Nations, the director and facultyof UNAFEI, directors and international directors of ACPF, distinguished experts fromdifferent countries and distinguished university professors. The list of experts is attachedherewith.
FORMAL PROCEEDINGSThe meeting commenced its proceedings with the welcome address by UNAFEI
Director Toichi Fujiwara. He stated that since UNAFEI’s establishment in 1961, theUnited Nations and the Government of Japan have jointly operated the Institute forthe training of personnel and research in the fields of crime prevention and criminal
justice. According to him, UNAFEI has respected and reflected the views of the United
Nations Crime Prevention and Criminal Justice Programme by taking up the Programme
agenda as the themes of UNAFEI’s training programmes. UNAFEI also has been
submitting an annual report to the United Nations and has received its valuable guidance
and advice.
ELECTION OF OFFICERS
The following officers were nominated and elected by acclamation:
Chairperson:
Mr. Minoru Shikita (Japan)
Vice-Chairpersons:
Mr. Thomas G.P. Garner (Portugal/Hong Kong)
Dr. Kanit Nanakorn (Thailand)
Rapporteurs:
Mr. H.G. Dharmadasa (Sri Lanka)
Mr. Severino H. Gaña, Jr. (Philippines)
ADOPTION OF AGENDA
The Committee adopted by consensus the following provisional agenda:
1. Election of Officers (Chairperson, Vice-Chairpersons, Rapporteurs)
2. Adoption of the Agenda and Other Organizational Matters
3. Report of UNAFEI Programmes by the Director of UNAFEI: “Recent Activities andFuture Perspectives of UNAFEI”
4. Assessment and Recommendations
5. Others
6. Adoption of Report
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ADDRESS BY UNITED NATIONS REPRESENTATIVES
After the adoption of the agenda, the Chairperson, Mr. Minoru Shikita introduced
Mr. Joseph Acakpo-Satchivi the representative of the United Nations and Mr. Mohamed
E. Abdul-Aziz, Senior Crime Prevention and Criminal Justice Officer.
Mr. Joseph Acakpo-Satchivi in his address stated that international cooperation forcrime prevention and criminal justice is an important item and on the development
agenda of the United Nations. The repeated calls for strengthened technical or material
assistance to developing countries attest to the pressing need to build a solid foundationof justice in our modern society through peace and development. Both peace anddevelopment are seriously undermined by inequities, corruption, social disorders andescalating crime. Furthermore, Mr. Satchivi pointed that it is the right moment tostart a thorough review of the work programme of the Institute in all its aspects with aview to rationalizing it and improving its efficiency and effectiveness as the wind ofreform is blowing everywhere across the globe.
Mr. Satchivi concluded his address by reiterating the call to the United Nations
Institutes for the prevention of crime and treatment of offenders to further develop
their research, training and technical assistance capacities. Collaborative networks
through non-governmental organizations and national research and educational
institutions must meet the growing requests from developing countries for technicaland scientific assistance.
Mr. Mohamed Abdul-Aziz in his address stated that the achievements of UNAFEI
were due to the effective leadership, a dedicated staff and a viable programme of work.
He applauded the good work done by UNAFEI to advance policy and practice in thefield of crime prevention and criminal justice not only in Asia and the Pacific region but
also in other developing countries. The training activities of UNAFEI provided an
opportunity to practitioners from different countries to compare practices and learn
from each other’s experience.
Mr. Abdul-Aziz stated that the efforts of the institute to collect data on crime trends,
crime prevention strategies and the treatment of offenders should be strengthened. He
suggested that UNAFEI develop a pragmatic strategy to raise awareness of its mission
among individuals and nations, publicize its activities and receive feedback from theoutside world. He also suggested the creation of a more solid base for a regional
information system on crime trends and crime prevention practices.
Mr. Abdul-Aziz further stated that in the re-defined role of the United Nations Crime
Prevention and Criminal Justice Programme, contributions made by the institutes suchas UNAFEI are not only desirable but essential. He assured the leadership and staff of
UNAFEI of the readiness of the United Nations Programme to further strengthen theexisting collaborative ties with it and undertake joint initiatives on issues of mutual
concern and interest.

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ON UNAFEI WORK PROGRAMMES AND DIRECTIONSDIRECTOR’S REPORTIn presenting his report, Mr. Toichi Fujiwara, the Director of UNAFEI said that thegoal of the Institute is to contribute to sound social development in Asia and the Pacificregion by promoting the prevention of crime and the improvement of criminal justiceadministration through training and research. UNAFEI has conducted a total of 107
international training courses and seminars in which more than 2,593 criminal justicepersonnel have participated, representing 89 different countries of the Asia-Pacific region,
Middle and near East, Latin America and Africa. In addition, UNAFEI conducted aconsiderable number of seminars with the cooperation of other governments. Reportingon the training programmes of UNAFEI, the Director stated that the training
programmes have four distinct characteristic features: a) a practice-oriented programme;b) an integrated approach; c) a participation-centered process; and d) a family
atmosphere.
By selecting urgent problems in the administration of criminal justice in the region,
the Institute has attempted to reflect the changing and contemporary needs of the region.
At the same time, UNAFEI has paid the utmost attention to the priority themes identified
by the Crime Prevention and Criminal Justice Programme of the United Nations.
Moreover, experienced practitioners are invited as participants from the different
criminal justice fields.
He explained that the three-month international training courses are organized toprovide participants, who hold relatively high senior positions in their respective
professions, with ample opportunities to discuss common contemporary issues andproblems in the field of crime prevention and criminal justice. The training courses
have been divided into two kinds: courses on the treatment of offenders (spring) andcourses on the administration of criminal justice (autumn). Primarily, the training
course curriculum is composed of the individual presentations on the theme by eachparticipant, lectures by visiting experts and faculty, and group workshops. These
programmes are supplemented by observation visits and study tours to various agencies
including the police, public prosecutors offices, the courts, and correctional andrehabilitation institutions.
International seminars are attended by top administrators, department heads, seniorprosecutors and judges who work at the policy-making level. The seminars have asimilar curriculum as the training courses.
He presented summaries of specific courses and seminars held from the 102nd
International Seminar to the 107th International Training Course. The themes of these
programmes introduced are as follows:
1996: • Crime Prevention through Effective Firearms Regulation (102nd International
Seminar)• Improvement of the Treatment of Offenders through the Strengthening of NonCustodial Measures (103rd International Training Course)• International Cooperation in Criminal Justice Administration (104th
International Training Course)

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1997: • The Effective Administration of Criminal Justice for the Prevention of
Corruption by Public Officials (105th International Seminar)• The Quest for Effective Juvenile Justice Administration (106th International
Training Course)• The Role and Function of Prosecution in Criminal Justice (107th International
Training Course)
Additionally, the 108th International Seminar, which will be held from 26 January to
27 February 1998, was presented.
The Director further stated that in July 1995 a special seminar was conducted for 30
high-ranking officials from the People’s Republic of China under the sponsorship of
ACPF. These officials and the faculty of UNAFEI discussed specific problems particularly
faced by the Chinese criminal justice administrators and explored practical solutions tosuch problems.
Following the success of this seminar and at the request of the Chinese Government,
another seminar for senior officials was conducted the following year. According to the
Director, the third seminar will be held from 1 to 19 December 1997.
Regarding joint seminars, the Director reported that since 1981, UNAFEI has
conducted 17 joint seminars under the auspices of JICA and in collaboration with hostgovernments. These joint seminars, with more than 100 participants, are customarily
attended by national cabinet members such as Ministers of Justice. It has theparticipation of policy-makers and high-ranking administrators as well as members ofacademia. The joint seminars provide a discussion forum in which participants share
their views and jointly seek solutions to various problems facing the criminal justiceadministration in the host country. UNAFEI contributes to these joint seminars by
carefully selecting the discussion topics in advance, delivering lectures and actively
participating in discussions. The next joint seminar will be in Dhaka, Bangladesh in
March 1998.
In addition to the joint seminars, UNAFEI frequently and actively participates inother seminars overseas. In October this year and under the financial assistance of
JICA, two professors from UNAFEI were sent to Kenya to assist the Kenyan Government
in holding a seminar on crime prevention and the treatment of juvenile delinquents.
Since 1989, UNAFEI has actively assisted the Latin American Institute for thePrevention of Crime and Treatment of Offenders in organizing regional seminars. In
the past, 10 such seminars have been held in cooperation with JICA and the Governmentof Costa Rica. These two-week seminars have about 20 participants, most of whom are
high-ranking judges, public prosecutors and administrators. They focus on drug problems
within the context of such contemporary issues as money laundering, prevention of
drug abuse, the treatment of drug offenders and international cooperation.
Since 1992, UNAFEI has sent two experts to Thailand each year to assist the Officeof the Narcotics Control Board in organizing regional training courses on the theme“Effective Countermeasures against Drug Offenders and the Advancement of Criminal

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ON UNAFEI WORK PROGRAMMES AND DIRECTIONS
Justice Administration”. Five such courses have been conducted with the cooperationof JICA and the Royal Thai Government.
Regarding research conducted by the UNAFEI, the UNAFEI faculty constantly strives
to collect useful statistics and other pertinent data as part of its daily activities. These
efforts have crystallized into such UNAFEI publications as “Asia Crime Report No. 1”(1993), which compiled extensive data regarding nine Asian countries. “Crime Trends
in Asia and the Pacific” (1995), another publication, represents efforts by UNAFEI tokeep the international community abreast of the actual crime situation in the AsiaPacific region. The latter publication was submitted to the Ninth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders held in Cairo,
Egypt in April 1995. Additionally, the results of a comparative study were compiled
into a book entitled “Criminal Justice Profiles of Asia,” in 1995. UNAFEI also intends
to publish the results of two other similar projects in the fields of corrections and probation
respectively.
The publications made by the Institute are designed to meet the practical needs ofcriminal justice personnel. Since 1971 the Institute has published 50 editions of the
UNAFEI Resource Material Series. The UNAFEI Newsletter and Ajiken Shoho (a report
on UNAFEI activities in the Japanese language) are regularly published. In addition,
UNAFEI has published “Criminal Legislation of Japan” (1993) and “The History of 100
International Training and Seminar Courses at UNAFEI” (1995) in commemoration of
the 100th UNAFEI International Training Course.
Regarding its activities, UNAFEI has collaborated with ACPF in all its World
Conferences and Working Group Meetings. Moreover, faculty members were dispatched
to Manila to assist in the establishment of the first halfway house in the Philippines, aswell as to Papua New Guinea and Thailand to help develop the projects of ACPF
Headquarters to foster volunteer leaders. He further elaborated on the follow-up
activities conducted by the UNAFEI faculty by visiting the countries of former
participants.
Reporting on the finances, the Director explained the vital role played by the Ministryof Justice and JICA , as well as the supportive role of ACPF.
On goals and prospects for the future, the Director said that future work would include
efforts to implement research projects. While serving as a clearinghouse for information
on crime prevention and criminal justice administration in the region, UNAFEI would
also continue to conduct comparative research focusing attention on the current situation,
problems and countermeasures. UNAFEI is in the process of updating the library andthe information services including the provision of necessary information on the internet.
Regarding staff intensification, the Director emphasized the desirability of having
professors from the police on the UNAFEI faculty. This is for the prevention of various
types of crime and their control by the United Nations Crime Prevention and Criminal
Justice Programme.

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The most encouraging part of the Director’s report was his announcement of the
opening of a UNAFEI branch in the city of Osaka by 1999. This would considerablyenhance the UNAFEI programmes. The Director concluded his report by assuring that
UNAFEI will continue to maintain its direction on a practice-oriented and problemsolving approach to benefit the participating countries in crime prevention and criminal
justice administration.
GENERAL DISCUSSIONS
Chairman Minoru Shikita thereafter invited comments and suggestions from theparticipants of the Ad Hoc Committee.
Mr. Thomas G.P. Garner, International Director, ACPF, commended the very valuable
work done by UNAFEI in helping to shape the criminal justice system in this part of
the world. He said the UNAFEI “Resource Material Series” and the “Newsletter” arevery valuable publications for information. Mr. Garner praised the supportive role playedby the JICA and ACPF in the activities of UNAFEI. He recommended the inclusion ofpolice personnel as faculty members of UNAFEI.
Mr. Wang Lixian, the representative from the People’s Republic of China, said theparticipants from his country who attended seminars and training courses at UNAFEI
have benefitted immensely from the training. He also thanked UNAFEI for the special
attention paid to his country by organizing special seminars. Mr. Wang Lixian madethe following suggestions: a) more senior officers at a policy-making level to participate
at seminars and the dissemination of the outcome of the seminars; and b)internationalization of the UNAFEI staff by increasing the involvement of visiting
experts. He also proposed the preparation of a list of experts from among UNAFEI
alumni and the establishment of a permanent Advisory Committee that would replace
this Ad Hoc Committee.
Mr. Kanit Nanakorn, the former Attorney General from Thailand, said that Thailand
has the largest number of UNAFEI Alumni—numbering over 130. These officers now
have assumed high-ranking positions in the country, and with the training given them,
UNAFEI has made a direct and substantial contribution to the administration of Thaicriminal justice. He made the following suggestions for the further development of
UNAFEI activities: a) UNAFEI should arrange more international training courses
and seminars in order to keep up with the current demands; and b) UNAFEI should
expand its regional activities, and for this purpose the Institute should invite capable
researchers from countries in the region.
Dato’ Ismail B. Che Rus, Commissioner of Police from Malaysia, thanked UNAFEI
and JICA for the opportunities granted in the past to Malaysian criminal justice officials
to participate in the training courses and seminar. He said that UNAFEI alumni are
active in Malaysia and are working on many projects with the Malaysian Crime
Prevention Foundation. Dato’ Ismail B. Che Rus made the following suggestions forconsideration in the criminal justice activities of UNAFEI: a) to grant opportunities to
non-governmental organizations to participate in UNAFEI programmes; and b) JICA
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institutes as they will be in a better position to impart knowledge to others. He further
suggested that participants attending UNAFEI training programmes should be
encouraged to acquaint themselves with other areas of the criminal justice system. He
suggested that police officers should also be included in the faculty of UNAFEI.
Professor Koichi Miyazawa of Chuo University stated that his interest in the work of
UNAFEI started when he first visited the Institute. Professor Suzuki was then the
director, and he was a visiting lecturer. He observed that the frequent transfer of faculty
members of UNAFEI is a disadvantage to the participants as they cannot maintainlong lasting contact with them. There was the possibility of providing the services of aprofessor from his university (Chuo University) if necessary. UNAFEI and universities
should cooperate with each other. Professor Miyazawa stressed the need to improve
the library and made a promise to donate his personal library to UNAFEI upon his
demise.
Professor Koya Matsuo of Jochi University stated that he endorsed the proposal of
the Chinese representative on the internationalization of UNAFEI. He said UNAFEI
is well known internationally, but it was necessary to make it well known in Japan aswell. To achieve this goal, he suggested visits by university professors to UNAFEI andthe sending of UNAFEI publications to universities.
Mr. Masaharu Hino, Superintending Prosecutor of the Nagoya High Public
Prosecutors Office, commented on the Osaka branch of UNAFEI. Osaka is the second
largest city in Japan, and the city planners welcome international activities. A large
portion of the new prosecution service building will be set aside for UNAFEI.
Mr. Han Youngsuk, Vice-Chairman of the Korean Crime Prevention Foundation, said
that UNAFEI alumni consist of 95 members who have distinguished themselves intheir respective fields. In his suggestion, he said that the training courses and seminars
must be arranged more flexibly to meet the urgent need to explore ways and means tocope with new kinds of crime. Three areas to be considered are: a) the protection of thepayment of cyber cash or electronic cash from forgery and abuse; b) a legal framework
to protect the electronic information from destruction by hackers along with protection
from piracy; and c) a new mode of judicial cooperation in the international society quite
different from the traditional one. He further suggested that UNAFEI become aninternational clearinghouse for information on the prevention of crime and criminal
justice. Lastly, he suggested joint seminars on a multinational basis.
Dr. B.N. Chattoraj, the distinguished expert from India, while highly appreciating
the substantial contribution made by UNAFEI during the last 36 years, made thefollowing suggestions: a) creating a small section for research work; b) appointing a
Research Advisory Committee; c) developing and upgrading the UNAFEI library, andfor this purpose appointing a Library Development Committee and publishing a quarterly
or bi-annual pamphlet on the progress of the library; d) identifying of crime prevention
and justice institutes in different countries and keeping close contact with them inorder to exchange information (UNAFEI is to act as a clearinghouse for this information);and e) for UNAFEI to consider publishing a journal that includes articles on various
developments in the field of criminal justice. Mr. Chattoraj also supported the idea ofincluding police officers in the UNAFEI faculty.
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RESOURCE MATERIAL SERIES No. 53
Mr. Ved Kshetri, Public Service Commissioner from Nepal, suggested considering
more UNAFEI joint seminars for the benefit of training lawyer members. With theestablishment of ACPF branches in many countries, their assistance could be obtained
to conduct these joint seminars.
Ms. Nazhat Shameem, the Director of Public Prosecution from Fiji, suggested that
UNAFEI should play a more proactive role in the selection of participants. She also
proposed to UNAFEI the inclusion of United Nations human rights instruments in its
day-to-day work and assist in keeping an updated knowledge on law reform initiatives
in other countries of the region.
Mr. Chronox D. Manek, Deputy Public Prosecutor from Papua New Guinea, suggested
the inclusion of NGOs in the UNAFEI programmes in order to increase community
awareness.
Mr. Severino Gaña, Jr., Senior State Prosecutor from the Philippines, suggested the
expanding of UNAFEI activities to challenging areas and increasing the numbers of
training programmes.
Professor Yoshio Suzuki, a former Director of UNAFEI, said that sufficient data was
not available for research, and UNAFEI should obtain the necessary information fromother countries through alumni associations and ACPF.
Mr. H.G. Dharmadasa, retired Commissioner of Prisons in Sri Lanka, mentioned the
difficulties in collecting the necessary information for research, as experienced by
UNAFEI when researching the implementation of the United Nations Standard
Minimum Rules for the Treatment of Offenders.
Mr. Hiroyasu Sugihara, a former Director of UNAFEI, also confirmed this problem
faced by UNAFEI.
Dr. S. Chandra Mohan from Singapore suggested that some positions on the UNAFEI
faculty be offered to other governments. He also said UNAFEI should consider publishing
information on law reform in other countries.
Mr. Thomas G.P. Garner suggested that UNAFEI’s financial constraints could be eased
if the represented nations and UNAFEI alternately paid for the sponsorship of aparticipant.
Mr. Kunihiro Horiuchi, a former Director of UNAFEI, suggested that richer Asian
countries could contribute to the work of UNAFEI by sending some staff members attheir own cost and bearing the expenses of their country’s participants.
Mr. Shinichi Tsuchiya, an observer of the meeting and a former Deputy Director of
UNAFEI, stressed the importance of comparative research and suggested conducting aseminar on this topic. He also said that training programmes on combatting computer
crime should be included.

392

THE NINTH MEETING OF THE AD HOC ADVISORY COMMITTEE OF EXPERTS
ON UNAFEI WORK PROGRAMMES AND DIRECTIONS
Mr. Kiyoshi Isaka, Managing Director of JICA, said that it was important to make anassessment on the effects of UNAFEI’s 35 years of work. He also suggested that somerich countries could assist in the work of UNAFEI.
CONCLUSION
Final comments were made by Director Fujiwara of UNAFEI in response to various
proposals made during the discussions. He said every effort will be made to improve
the work of UNAFEI, giving consideration to the suggestions made at the meeting.
Some proposals have already been implemented, while others need time. The Director
appreciated the high valuation of the integrated approach. Though sometimes training
is focused on narrow fields such as prosecution, the general approach is an integrated
one. He agreed that topics such as legislation reform, research and human rights must
be incorporated further into UNAFEI training programmes.
On the inclusion of NGOs in the training programmes, there were no restrictions as
far as UNAFEI was concerned, but the financial assistance for their participation
depended on the policies of JICA.
The Director admitted that the research activity at UNAFEI is relatively weak due
to the limited staff and their involvement in the main activity of training. Nevertheless,much attention is paid to this area and cooperation from outside experts such as UNAFEI
alumni is necessary. He also said that UNAFEI will develop close contact with
universities.
Regarding the composition and the internationalization of the UNAFEI staff, theDirector said that UNAFEI would continue to invite as many visiting experts as possible
from various regions of the world. Internationalization needs much effort. UNAFEI
will try to make its staff visit and study in foreign countries. Some developed nations
like Singapore may offer the services of a faculty member and such help would be greatly
appreciated. The Director stated further that the necessity of the inclusion of police
officers in the UNAFEI faculty was mentioned in his report. He expressed hope thatwhen the Osaka branch of UNAFEI is established in 1999, police officers would be
included in the faculty.
He wanted very much to increase the training programmes according to emerging
needs such as victimology, human rights and organized crime. However, the restraining
factors are the limited staff and other facilities.
The Director also admitted that the library needs improvement. He thanked Professor
Miyazawa for the intended donation of his personal library to UNAFEI. He requested
participants and alumni to assist in the development of the library by sending relevantpublications from their own countries.
The Director observed that the effect of training provided by UNAFEI has not been
fully researched and evaluated. However, he expressed that the results of UNAFEI
training programmes are well reflected by the achievements of its alumni in the soundimprovement of criminal justice systems and practices in their respective countries.

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RESOURCE MATERIAL SERIES No. 53
For example, the development of community policing in the region such as theintroduction of the “Police Box” in Singapore has been influenced by the teachings at
UNAFEI. As another example, a halfway house has been established in the Philippines
by ACPF Nagoya Branch with the cooperation of UNAFEI.
The Director concluded by assuring the members of the committee that every effort
will be made to improve the training at UNAFEI.
Mr. Garner—who had earlier taken the chair at the invitation of Mr. Shikita—
concluded the proceedings of the Ad Hoc Committee with a vote of thanks to UNAFEI,
the United Nations and the Government of Japan.
Prepared and submitted by the rapporteurs:

H.G. DHARMADASASri Lanka

394

SEVERINO H. GAÑA, JR.
Philippines

THE NINTH MEETING OF THE AD HOC ADVISORY COMMITTEE OF EXPERTS
LIST OF EXPERTS
ON UNAFEI WORK PROGRAMMES AND DIRECTIONS
United Nations
Mr. Joseph Acakpo-Satchivi

Mr. Mohamed E. Abdul-Aziz

Overseas
Mr. Wang Lixian

Secretary, Fifth Committee of the General Assembly
and the Committee for Programme and Coordination
United Nations, New York
Senior Crime Prevention and Criminal Justice Officer,
United Nations Crime Prevention and Criminal
Justice Division
United Nations Office at Vienna

Director-General, Foreign Affairs Department,
Ministry of Justice
People’s Republic of China

Ms. Nazhat Shameem

Director of Public Prosecutions
Fiji

Dr. Barindra Nath Chattoraj

Professor and Head of National Institute of
Criminology and Forensic Science, Ministry of Home
Affairs
India

Dato’ Mohd Ismail B. Che Rus

Commissioner of Police, Director, Criminal
Investigations Department, Royal Malaysia Police
Headquarters
Malaysia

Mr. Ved V. Kshetri

Public Service Commission
Nepal

Mr. Chronox D. Manek

Deputy Public Prosecutor, Public Prosecutors Office,Department of Attorney General
Papua New Guinea

Mr. Severino H. Gaña, Jr.
*Rapporteur

Senior State Prosecutor, Department of Justice
Philippines

Mr. Thomas G.P. Garner*Vice-Chairperson

Editor, New Society, The Newsletter of ACPF,
and former Commissioner of Prisons, Hong Kong
Portugal/Hong Kong

Mr. Han Youngsuk

Vice Chairman, Korea Crime Prevention Foundation
Republic of Korea

Dr. S. Chandra Mohan

Official Assignee & Public Trustee
Singapore

Mr. H.G. Darmadasa*Rapporteur

Rtd. Commissioner of Prisons
Sri Lanka

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RESOURCE MATERIAL SERIES No. 53
Dr. Kanit Nanakorn*Vice-Chairperson

Japan
Mr. Masaharu Hino

Former Attorney General and Professor, Facultyof Law, Thammasat University and Chulalongkorn
University
ThailandSuperintending Prosecutor, Nagoya High Public
Prosecutors Office, and a former Director of UNAFEI

Mr. Kunihiro Horiuchi

Private Practitioner, Ex-Director of UNAFEI

Mr. Kazutomo Ijima

Supreme Court Justice

Mr. Kiyoshi Isaka

Managing Director, Hachioji International Training
Center, JICA

Dr. Koya Matsuo

Professor, Faculty of Law, Jochi University

Dr. Koichi Miyazawa

Professor, Faculty of Policy Studies, Chuo University

Mr. Minoru Shikita*Chairperson

Chairman of the ACPF Board of Directors, anda former Director of UNAFEI

Mr. Hiroyasu Sugihara

Director-General, Public Security Investigation
Agency, and a former Director of UNAFEI

Mr. Yoshio Suzuki

Professor, Faculty of International Relations, Asia
University, and a former Director of UNAFEI

396

APPENDIXCOMMEMORATIVE PHOTOGRAPHS• 107th International Training Course• Ad Hoc Advisory Committee of UNAFEIWork Programmes and Directions

UNAFEI

THE 107TH INTERNATIONAL TRAINING COURSE

Left to Right:
Above:
Tseng (Visiting Expert), Lee (Visiting Expert), Manella (Visiting Expert), de Larosière deChampfeu (Visiting Expert).
5th Row:
Kai (Staff), Saito (Staff), Suenaga (Staff), Matsushita (Staff), Mitsui (Staff), Nakamura (Staff),
Tezuka (Staff), Kaneko (Staff), Matsuda (Staff), Komatsu (Staff).
4th Row:
Yamanishi (Japan), Takahashi (Japan), Kubo (Japan), Ueda (Japan), Cheng (Singapore),
Pholsena (Lao People’s Democratic Repubic), Somjai (Thailand), Miyamoto (Staff).
3rd Row:
Saito (Japan), Sudo (Chef), Gamalath (Sri Lanka), Izumi (Japan), Ito (Japan), Ishikawa (Japan),
Kurashige (Japan), Sharma (India), Abe (Staff), Okeya (Staff), Todaka (Staff), Tatsumi (Staff).
2nd Row:
Iizuka (Staff), Kobayashi (JICA Coordinator), Suzuki (Japan), Chilufya (Zambia), Mwalili(Kenya), Corpuz (Philippines), Ansah-Akrofi (Ghana), Abdul Razak (Malaysia), Zafar (Pakistan),
Ngo Mandeng (Cameroon), Guan (China), Lee (Republic of Korea), Cordero (Costa Rica), Jameel(Maldives), Ersyiwo (Indonesia), Poudyal Chhetri (Nepal), Nakazawa (Japan).
1st Row:
Takayama (Chief of Secretariat), Kurosawa (Professor), Yoshida (Chief of Research, Professor),
Akane (Professor), Tauchi (Deputy Director), Mrs. Kanit, Kanit (Visiting Expert), Takahashi(Programming Officer, Chief of Training, Professor), Yamashita (Professor), Konagai (Chief ofInformation and Library Service, Professor), Imafuku (Professor), Vander Woude (Linguistic
Adviser).

THE NINTH MEETING OF THE AD HOC ADVISORYCOMMITTEE OF EXPERTS ON UNAFEI
WORK PROGRAMMES AND DIRECTIONS

Left to Right:
3rd Row:
Imafuku (Professor, UNAFEI), Kurosawa (Professor, UNAFEI), Wang (China)*, Horiuchi(Japan)*, Ijima (Japan)*, Matsuo (Japan)*, Suzuki (Japan)*, Kittipong (Thailand)*, Shameen(Fiji)*, Chandra Mohan (Singapore)*, Takahashi (Chief of Training, Professor, UNAFEI).
2nd Row:
Tauchi (Deputy Director, UNAFEI), Kshetri (Nepal)*, Han (Republic of Korea)*, Gaña
(Philippines)*, Ismail (Malaysia)*, Manek (Papua New Guinea)*, Sugihara (Japan)*, Miyazawa(Japan)*, Dharmadasa (Sri Lanka)*, Vander Woude (Linguistic Adviser, UNAFEI).
1st Row:
Konagai (Chief of Information and Library Service, Professor, UNAFEI), Akane (Professor,
UNAFEI), Mrs. Gaña, Isaka (Japan)*, Hino (Japan)*, Garner (Portugal/Hong Kong)*, AcakpoSatchivi (United Nations, New York)*, Shikita (Japan)*, Abdul-Aziz (United Nations Office at
Vienna), Kanit (UNAFEI Visiting Expert, Thailand)*, Fujiwara (Director, UNAFEI), Chattoraj(India)*, Kumarasingha (UNAFEI Visiting Expert, Sri Lanka), Yoshida (Chief of Research,
Professor, UNAFEI), Manella (UNAFEI Visiting Expert, United States), Mrs. Garner.
* denotes member of the Ad Hoc Advisory Committee.