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.

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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

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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.

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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.

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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”.

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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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