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- Русский
Speech on "Public Interest and Criminal Prosecutions"
With the impression that prevails in society and in fact is unfortunately consciously cultivated by some, my speech could have ended before it began. I would simply say that in the public interest I will not tell you anything.
The fact is that matters relating to criminal prosecutions have their own interest and everyone, depending on whether or not they are affected, deals with it from their own point of view. It is for this reason that it makes the work of a public prosecutor even more difficult and complex.
I will first attempt to outline the process we follow in deciding to advance a criminal prosecution, stating the basic principles and then the criteria we apply.
Ithasneverbeentheruleinthiscountry - andIhopeitneverwillbe - thatsuspectedcriminaloffencesmustautomaticallybethesubjectofprosecution" (It has never been the norm in this country - and I hope it never will be - that acts that are likely to constitute criminal offences should automatically be brought to court). In this statement, before the English Parliament in 1951, Lord Shawcross, who was then Attorney General of Great Britain, captured and proclaimed the concept of the public interest in criminal prosecutions which pervades and characterises common law systems.
In contrast to the legality principle, which applies, or rather has applied, as will be shown below, mainly in systems based on Continental law and states that the sufficiency of the evidence is the only factor to be taken into account in criminal prosecutions, the opportunity principle maintains that the mere existence of evidence of the commission of an offence should not automatically lead to criminal prosecution. Instead, a second condition must be met, namely that the prosecution is necessary in the public interest or does not harm the public interest.
Gradually, however, even the strictest continental systems of criminal prosecution have, to a greater or lesser extent, adopted the principle of expediency, both for practical reasons, for reasons of economy of litigation, to reduce the burden on the judicial system and court docket, to speed up proceedings, but also for reasons of substance and to change or modify the philosophy underlying criminal prosecution.
With regard to the former, it gradually became clear that the strict application of the principle of legality, especially with regard to the examination of minor cases by the criminal courts, led to a flooding of the criminal courts with minor cases of minor importance, with the result that the quality and duration of the investigation of cases of more serious criminality was significantly affected. The overburdened judicial system was leading to a quagmire and did not serve the effective administration of justice.
And for reasons of substance, however, it was accepted that the possibility of assessing the advisability of initiating a criminal prosecution should be provided in some cases. The principle of expediency was understood to be linked, inter alia, to the defence of the principle of proportionality, in the sense of avoiding prosecution where the social harm that would be caused by adherence to pursuing prosecution at all costs for any violation of a criminal provision would outweigh the social benefit of doing so. The conclusion as to whether a criminal prosecution is ultimately just and beneficial requires an evaluation and assessment of a number of factors which go beyond the letter of the particular criminal provision and are encompassed within the concept of what we call the wider public interest.
The decision to prosecute is undoubtedly a decision of exceptional gravity. It affects to a large extent both the individual interest and the public interest. It is for this reason that when we have before us a police or criminal file and are called upon to decide whether a particular case should be brought before a criminal court, we consider two factors: First, whether there is the necessary evidence for prosecution and second, whether prosecution is in the public interest. This assessment is made by highly qualified personnel, officers in the Criminal Division of the Legal Service, having the capacity, experience, legal training and also "compassion" or "sympathy".
The public interest must be judged in every case in which there is satisfactory evidence for prosecution, that is, when the first factor or stage of assessment is satisfied, for no prosecution, however serious a case may be, is justified unless there is the necessary evidence for it. Therefore, we first examine with all due care by studying the testimonial material and if on that basis the constituent elements of the relevant offences under investigation are satisfied and in fact it appears that on the basis of admissible testimony there is a reasonable prospect of conviction of the accused, then we find that the first stage is satisfied. Sometimes instructions are given for further investigation to clarify certain testimony.
If, therefore, the first stage is satisfied, we assess whether the prosecution is in the public interest. As a general rule, if there is evidence, and particularly if it is a serious case, a prosecution should be brought, unless there are public interest reasons for not prosecuting which manifestly outweigh those in favour of prosecution.
The factors in favour of a prosecution and those in favour of not prosecuting must be carefully and fairly balanced. The public interest considerations influencing the decision to prosecute are usually based on the seriousness of the offence or the personal circumstances of the suspect, but quite often they also relate to other, more general issues, such as the increase in a particular crime, factors relating to the workload of the courts, public order and security, the protection of confidential information of an agency or the State, the international relations of the country, and even the security of the State itself. Some factors may increase the need for prosecution, but others may argue that avoiding prosecution, or being treated differently, would be a wiser choice in the circumstances. Such as, for example, referring the defendant to a special rehabilitation program or psychiatric or psychological support or any other treatment or counseling by specialists.
For us, justification is not an option, proceed to prosecution and let the Court decide. It goes without saying that it is the Court that decides when it has a case before it. But our role in the administration of justice is not the role of a postman who simply carries the police file with any recommendations of the investigating magistrates, with all due respect to the investigating magistrates, before a Court. We have both a constitutional obligation and a duty to society and the justice system to assess with all professionalism and seriousness the criteria that I have mentioned at both stages. I also note here that our concern is certainly to safeguard the rights of the victims, but I make it clear that our priority is the protection of society as a whole. We do not act on the basis of the private interests of the victim, e.g. the victim feels very strongly that the perpetrator should be punished. But if it is a non-serious offence and the accused is a minor and has co-operated and has no previous convictions, it may be justified not to prosecute. At the same time, he has cases where the victim is compensated and withdraws a complaint, but the defendant is prone to commit offenses. We must protect society by continuing the prosecution, assuming we have other available evidence.
In the following I will refer to some of the usual factors which are taken into account, under the concept of public interest, but which, in any event, cannot be regarded as exhaustive. The factors influencing and determining the prosecution depend on the facts in each individual case and are assessed globally.
Reasons having to do with the offence itself
- The seriousness of the offence or, on the contrary, the fact that the offence is minor
- The damage caused by the offence
- The frequency of the offence at the time and the need to prevent it
Reasons relating to the defendant
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- The degree of culpability and involvement of the defendant
- Reasons why it is believed that the offence is likely to continue or recur
- The defendant's previous criminal record
- Age, health, marital status, family status, degree of maturity
- The admission and willingness to cooperate with the authorities
- The fact that the defendant has made full reparation for the harm or damage caused. It is understood that this in itself is not a reason for not prosecuting.
- The need for the accused to testify against other defendants more seriously involved in the illegal activity or the cooperation of the accused with the prosecuting authorities in the context of information and solving other more serious cases.
Reasons related to the victim
- The victim's wish to proceed or not with the prosecution and possible reconciliation with the offender in cases of minor offences
- The possibility that the prosecution may have harmful effects on the victim's physical or mental condition, but always taking into account the seriousness of the offence and guidance from experts.
- The victim of the offence was vulnerable, intimidated or personally assaulted, harm or annoyance
Reasons for imposing a sentence - or other punishment on the offender
- The Court is likely to impose only a nominal sentence
- The defendant has already been sentenced and any further conviction is unlikely to result in the imposition of an additional sentence, unless the nature of the offence is such that prosecution is appropriate
- Existence of alternative ways of dealing with the offender, e.g.e.g. now with the new law on the treatment of young offenders or the disciplinary treatment of a defendant.
Other reasons
- The delay between the commission of the offence and the date of the trial, taking into account the following:
[I) THE SERIOUSNESS OF THE OFFENCE
[II) IF THE DELAY WAS CAUSED IN PART BY THE DEFENDANT,
[III] if the disclosure of the offence was recent, and
(iv) if the complexity of the offence required a lengthy investigation;
- Reasons for overloading or deliberately decongesting the system of administration of justice
- Reasons for protecting sources of information, confidential matters of the State, national security issues, etc.
- Relations of the Republic with other States
It should be noted that the decision as to whether or not there is a public interest is not simply a mechanical matter of adding up the number of factors that weigh in a particular direction. It is necessary to decide how important each factor is in the circumstances of each case and then to make a general and global assessment of all the factors. Practice has shown that no two cases are alike and sometimes a factor that was not important in one case, in combination with another, has in another case become decisive.
Disclosure of public interest reasons
With regard to the disclosure of public interest reasons, it should be noted that even in countries where accountability for prosecution or non-prosecution is mandatory, it is not mandatory to disclose all reasons for prosecution because this may irreparably harm the public interest or the rights of other persons. What we apply in the Legal Service, although the power of the Attorney General of the Republic is unchecked, is always exercised in accordance with the law and is based on adequate reasoning and very careful assessment. In the file of each criminal case, we explain in detail the decision, the factors and the reasons that led to the compared outcome in each case or we refer to the reasons of a request that is justified. In the vast majority of cases, the required explanations are given to both the court, the victim or the complainant, even in public, when and to the extent that this is feasible and does not jeopardize other interests.
Sometimes the reasons for not prosecuting a criminal case are so serious that their disclosure would cause the same harm that was sought to be avoided by not prosecuting the case. The public interest sometimes necessarily requires confidentiality and the avoidance of public statements. This is not something that is unique to our country, but a fact of life in any system of law, especially criminal prosecutions in one form or another.
It would be very easy, at times, to drift into populist approaches, depending on what popular opinion believes and demands at any given time, and either decide on criminal prosecutions based on a so-called sense of justice or respond uncritically to requests for public discussion of sensitive issues in a criminal prosecution. Too often the public interest is confused with current popular sentiment, but the two concepts are clearly distinct. The concept of public interest in criminal prosecutions clearly encompasses aspects relating to public opinion and opinion, but it includes many more and complex aspects, as explained immediately above, not all of which are amenable to public exposure and debate. On the contrary, on several occasions their public discussion can be extremely dangerous and potentially destructive to the effective administration of justice. In view, therefore, of the dilemma of popular feeling or public interest, when the two cannot be reconciled, our highest duty and obligation, and at the same time a constitutional imperative, is to serve the latter, even when the former is rebelled against, even when this implies exposure to danger, unfair criticism and often the creation of suspicion and recriminations.
Unfortunately, this suspicion and slander are nowadays expressed in various forms. Throughout time it has been criticism through newspaper articles, anonymously and with some documentation. It was followed by criticism, again anonymously, by various media outlets and eventually evolving through anonymous social media accounts. There you now realize that the criticism has turned into spreading fake news, unsubstantiated facts and allegations and unethical characterizations and conclusions.
Having considered a complete picture of each case, believe that these posts we see on a daily basis now are not the result of not disclosing reasons for a decision based on serving the public interest in a case. Behind each one is the petty interest of the person affected and/or ulterior motives that only seek to cause harm to our society. This new order of things should concern us all as a society.
Society does not understand the interests or motives behind these anonymous or anonymous accounts and creates a pressure that at the end of the day is intended to serve alien purposes. The culmination of this is the instrumentalisation of authorities that should otherwise be helping to safeguard the public interest, not populating on the basis of mistaken or bad faith or perverse motives. Our concern as public prosecutors, and I speak for all our officials, is always to maintain the balance that should exist. At this point, I would like once again to thank all the officials of the Criminal Division and the Chief Prosecutor of the Criminal Division, Ms. Elena Kleopa, because both the Attorney General of the Republic and I are fortunate and privileged to work with them. They are dedicated, committed, competent, experienced and dutifully serve the public interest. Our every possible effort should be to give reasons and attempt by action to confirm that everything is done in good faith and YES, serving at the end of the day essentially the public interest and not extreme populism.
In conclusion, I would like to stress that we welcome any good faith criticism, any disagreement with our decisions. It makes us better at serving the public interest. But we will not remain apathetic and mere spectators when our integrity and independence are subjected to unethical attacks, which have the sole purpose of losing public confidence in the institution of the Attorney General and may be perceived as measures to threaten and intimidate us into doing our duty. Rest assured that at the end of the day and in order to protect the public interest, those who unjustly and without any testimony accuse us of acts that we have otherwise taken steps to combat within the law will be checked.
Before I close, allow me in turn to congratulate the people who contributed to the creation of the newly established Academy of the Legal Service and all those who contributed to the organization of this conference. I wish it well and I am sure that the work of the Academy will add value to all our efforts as a Legal Service to better administer justice and will make a great contribution to the daily lives of both Legal Service officers and all civil servants.
(BL)
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