UDC (Universal decimal classification) 347.963

SPEECH OF A PUBLIC PROSECUTOR IN THE MAIN TRAIL

Rakhmetova M. A.,Nurbek D.T.

Zhetysu State University named after I.Zhansugurov, Taldykorgan, Republic of Kazakhstan.

Participation of the public prosecutor in the main trial as a government lawyer is an important guarantee of passing a lawful and justified sentence by the court. The task is to get rid of formalism in this important issue, to raise constantly the quality and educational influence of state prosecution.

Legality and propriety of a sentence in many respects depend on persistence of the public prosecutor in establishment of proofs and on his professional ability to take a position based on the law and on the materials of the concrete criminal case.

Supporting the accusation the public prosecutor is guided by the requirements of the law and his internal belief based on the results of consideration of all circumstances of the case. The public prosecutor can change accusation if it does not worsen the condition of the defendant and his right of defence is not infringed. The public prosecutor has to refuse accusation (in full or partly) if he comes to the conclusion, that it has not found acknowledgement in the trial (article 317 of CPC)[2.33p.].

Judicial pleadings consist of speeches of the prosecutor, the victim or his/her representative, the civil claimant and the civil defendant or their representatives, the defendant and the defender. The order of speeches of participants of process is established by the court according to their suggestions, but in any case the prosecutor speaks first.

Assigning the speech of the prosecutor the first the law proceeds from the article 347 of CPC according to which in judicial investigation the prosecution produses proofs the first.

Speaking first the public prosecutor reports all circumstances of the case and his activity in the main trial ends with speech for the prosecution.

On its legal essence and procedural value speech of a state prosecutor is a legal act with which he realizes his powers in the court and therefore it should meet certain requirements.

To make the speech legally proved, the public prosecutor should make the proofs investigated in the court into a strict system. At the same time the public prosecutor is expected not just to cite the proofs, but to analyze them critically and to give an objective appraisal.

Each state prosecutor has his own individual manner and style of public speech, the plan of making a speech. But there are general requirements laid to all state prosecutors without exception. Speech of the public prosecutor should be not only juridically correct, but also stylistically competent. For this purpose it is necessary to know deeply the materials of criminal case, to have an accurate position on the questions of legal estimation of defendant’s action, to analyze the factors from juridical and psychological point of view, to have irreproachable logic in judgments. It is necessary to aspire to be clear not only to the court, but also to those present at judicial session so that they also would be convinced of justice and propriety of the requirements of the public prosecutor.

Speech of the public prosecutor will be convincing if he knows well the materials of the case and also uses them on good faith and estimates them objectively. Therefore the public prosecutor should prepare carefully for supporting the state accusation on each criminal case. Speeches of the public prosecutor in the court as an impromptu and speeches written in full in advance before the trial are inadmissible. The basic theses of the speech under all conditions should be prepared in advance so that the prosecutor could make necessary changes and additions during judicial investigation.

The law does not predetermine the content of the speech of the state prosecutor. Making the speech the public prosecutor usually proceeds from three questions which are allowed by the court at awarding a sentence according to article 371 of CPC[2.32p.].

At the same time, practice of supporting the state prosecution has developed a certain speech structure of the state prosecutor. It contains the following elements: 1) social-political estimation of a crime; 2) analysis and estimation of proofs; 3) suggestions on measures on preventing crimes; 4) legal estimation of a crime; 5) characteristic of defendant’s personality; 6) suggestions on punishment measures and calculation of length of punishment; 7) ideas about compensation of property damage; 8) setting the fate of real evidences, suggestions on restraints to the defendant before coming of the sentence into effect.

Correlation of the specified elements, their place in the speech structure and volume can vary depending on the concrete circumstances of each criminal case. For example, in the case with indirect proofs the main attention in the speech will be paid to their analysis and estimation. If considerable difficulties are caused by legal estimation of a crime the public prosecutor pays great attention to the corresponding speech element. In some speeches there can be no questions of compensation of property damage or some other elements. Besides, the sequence of speech of the public prosecutor also can change according to concrete circumstances of criminal case. For example, social-political estimation of a crime can be given either in the beginning or at the end of speech when suggestions on punishment measure are given.

1. Public estimation of a crime.

Each crime irrespective of its character and type, and also of the gravity of the consequences represents certain public danger to the society and the state, infringes on the interests not only an individual, but also breaks the established norm of behaviour. The state prosecutor, giving public estimation of a crime, expresses an estimation of the crime, expresses an estimation of the state of the concrete illegal act and explains why the law punishes for doing certain actions or inactivity and why they are socially dangerous.

Public estimation of a crime should be based on actual materials of criminal case and connected closely with them. Some public prosecutors happen to exaggerate this danger speaking about public danger of the crime committed by the defendant. This circumstance causes awarding unreasonably heavy sentences by the courts.

2. Analysis and estimation of proofs.

The most difficult and responsible part of activity of the public prosecutor as state prosecutor is analysis and estimation of proofs. The public prosecutor should produce proofs on the case into strict system on episodes or on persons. Any proof no matter how convincing and logically complete it was at first sight, is subject to the most scrupulous estimation. In speech of the public prosecutor the proof are subject to estimation both for each separate and in the aggregate.

Starting proving presence or absence of fault, the public prosecutor should procced from the order of establishment, check, analysis and estimation of proofs stipulated by the law. Besides he analyzes the procedural documents in which preliminary investigation bodies expressed their relations to the established proofs. These procedural documents include first of all the decision on selection a restraint, the decision about accusing and the bill of particulars [1.89p.].

The verdict of guilty cannot be based on assumptions. It can be based only on authentic proofs. In practice there are cases when the state prosecutor refers only to a source of proofs (evidences of witnesses, the victim, the defendant, expert's opinion etc.), but does not reveal the content of these proofs.

Estimation of proofs by the court awarding a sentence and by the public prosecutor supporting the state accusation differs on their legal consequences. The public prosecutor only expresses to the court his views on the questions allowed by the court at awarding a sentence. However it does not reduce responsibility of the public prosecutor for propriety of his position in criminal case. Expressing to the court his position concerning validity of fault of the defendant, the public prosecutor should be convinced of reliability of his conclusions. Proving of guilt of the defendant by the public prosecutor contrary to his internal belief grossly perverts a principle of independence and procedural independence of the state prosecutor. Therefore refusal of accusation if it has not found acknowledgement in the trial is not a right, but a duty of the public prosecutor.

At refusal of accusation the public prosecutor cannot be limited to unfounded refusal of accusation, but he should state the motives.

Conclusive refusal of the public prosecutor of accusation also has a great educational value. Such position of the state prosecutor shows that for him the most important thing is the truth and a just lawful decision, but not accusation at any price.

3. Suggestions on measures on preventing crimes.

After describing the circumstance of the committed crime, substantiation of proofs of defendant’s fault, the public prosecutor in his speech analyzes the circumstances promoting committing a crime. Activity on preventing offences and crimes requires from public prosecutors establishment of the reasons and the conditions resulting in committing a crime. Practice of supporting the state prosecution shows that public prosecutors in the court do not take the initiative and do not give to the courts suggestions on taking measures on preventing crimes, some courts do not make special statements in spite of the fact that they should do that.

Such imperfection of trial courts and also the public prosecutors supporting the state accusation can not be always corrected by reviewing courts and reviewing authorities. Less than a half number of cases considered by trial courts get to the reviewing authorities and if there are lacks that are usually not met.

So it is very important that the trial court investigated carefully the reasons and the conditions resulting in committing a crime, and took corresponding measures on them. Establishing the reasons of committing an economic crime, bribery cases and personal crimes is especially important.

4. Legal estimation of a crime.

The court sentence should contain a correct legal estimation of a crime which is one of necessary conditions of administration of justice.

Qualification of a crime and accordingly a measure of criminal punishment will substantially depend on correct understanding and definition of some signs of a crime, such as «special atrocity», «considerable damage», "responsible" positions of an official etc.

Analysis of speeches of state prosecutors shows that the majority of mistakes are made concerning qualification of crimes and their legal estimation. One of the reasons of this lack is the fact that some prosecutors do not attach due importance to qualification of defendants’ actions in advance before the judicial session and do not prepare for its substantiation.

Other reason is insufficient knowledge of criminal legislation by some public prosecutors.

Juridical practice of plenums of the Supreme Court of the Republic Kazakhstan is very important at legal qualification of a crime.

Suggestion of the public prosecutor on qualification of defendant’s actions should be definite and clear, it should contain deep analysis of the legal norm, providing responsibility for the act made by the guilty person.

5. Characteristic of defendant’s personality

By prescribing a punishment the court takes into account not only the character and degree of public danger of the committed crime, but also information about the personality of the guilty person. Criminal-procedural legislation considers information about the accused person as circumstances which are subject to prove in criminal cases. Without information about defendant’s personally the court can not make a sentence, and the public prosecutor can not state the proved suggestion about measure of punishment concerning the defendant. Therefore the characteristic of the defendant is an obligatory element of each speech of the state prosecutor.

Supporting the state accusation the public prosecutor has to find out in details all information characterizing the personality of the defendant. Giving the characteristic of the personality of the defendant the public prosecutor prepares the court and those present at judicial session to the fact that his requirement about punishment measure to the defendant is proved. From this characteristic, for example, it should become clear why the public prosecutor on a group case demanded for this defendant more strict punishment than for other participants of the crime in the same case.

Estimating information about the personality the public prosecutor should not be limited only by the characteristic which is filed. In the speech it is necessary to use the information received from interrogations of the defendant, witnesses and other sources able to characterize the person.

Giving characteristic of the personality of the defendant the public prosecutor is expected to be maximum objective. That is why it is not admissible, when the public prosecutor gives the characteristic without any proof being based only on the fact of the committed crime. It is also wrong to differentiate "positive" and "negative" characteristic, without its analyzing. For example, not always previous conviction can be considered as the circumstance aggravating responsibility of the defendant. But if the person after serving punishment is not reformed and hereupon committed a repeated crime the public prosecutor has to mention this circumstance.

A full, objective characteristic of the defendant and the victim favours awarding a lawful and just sentence by the court.

6. Suggestion on punishment measure.

Punishment is a measure of state compulsion prescribed by court sentence and it is used for restoration of social justice, and also for reformation of the convicted person and prevention of committing new crimes as by the convicted person and others persons. Punishment does not purpose to cause physical suffering or humiliation of human dignity (article 38 of Criminal Code).

Hence, punishment should be lawful and meet the requirements of certain norms of criminal law, proved, i.е. based on the materials of case investigated by the court, reasoned and convincing, just, i.e. to correspond to gravity of the committed crime and the personality of the guilty person [1.67p.].

Court decision defining a measure of punishment in many respects depends on the position of the state prosecutor. And therefore the task of the public prosecutor in the court is to approach the question on punishment measure reasonably, and also on the kind of a penitentiary facility where the convicted person will serve his term. The measure of punishment suggested by the public prosecutor as in the form and in the size should correspond strictly to the law and purports reformation of the convicted person. A new criminal legislation establishing differentiated approach at giving measures of criminal punishment has expanded a circle of types of criminal punishment. A guilty person should be given punishment necessary and sufficient for his reformation and prevention of new crime. More strict type of punishment from among the punishments provided for the committed crime should be given only in cases if less strict punishment cannot provide achievement of the purposes of punishment. At giving punishments character and degree of public danger of a crime, the personality of the guilty person, including the circumstances mitigating and aggravating responsibility and punishment. If as circumstances mitigating responsibility can be considered the circumstances not provided by criminal legislation, the circumstances listed by criminal law are exhausted and are not subject to broadened interpretation. It is necessary to approach very carefully awarding measures of criminal punishment to under age convicted persons.

At giving punishment to the minor except general principles of punishment it is necessary to take into account the conditions of his life and education, the level of mental development and other abilities of the person, and also influence on him by elders.

Special attention is required from the public prosecutor when it is a question of application capital punishment - death penalty. This punishment can be given only for especially grave crimes. Therefore in the speech of the public prosecutor it is not enough to refer to crime gravity. It is necessary to mention also motives and circumstances which could convince the court of expediency of application to the convicted person this measure of punishment instead of other one.

In speech for the prosecution the public prosecutor should make the observations not only about the basic, but also an additional punishment measure.

7. Suggestions on compensation of material damage, presenting real evidence to the judge and about a preventive punishment to the defendant.

According to article 383 of CPC the resolution part of both conviction and verdict of "not guilty" should contain decisions on the brought civil suit, decision of question about real evidence.

At establishment of the character and the size of damage caused by a crime the state prosecutor makes his observations about the order of its compensation. Supporting the civil suit the public prosecutor proves it. In group cases he should suggest to the court who of defendants is made answer and what sum has to be levied.

In case of dropped charge because of absence of components of crime in defendant’s actions the public prosecutor suggests the court dismissing an appeal and when dropped charge is caused by non-establishment of a crime or failure to prove participation of the defendant in committing the crime - to dismiss a claim.

If there is a need of taking measures of maintenance of a civil suit if measures were not taken before, the public prosecutor in his speech can raise this issue in the court having specified concrete measures of maintenance (arrest of property, cash deposits etc.).

According to article 121 of CPC real evidence is subjoined to the case by the decision of the body conducting criminal trial, and is there up to effectiveness of the sentence or the decision about dismissal of case.

In his speech the state prosecutor also should state his suggestion on destiny of real evidence. In relation to crime instrument belonging to the defendant, he puts a question on confiscation and their transfer to corresponding establishments or their destruction if they are illegal,

- about transfer to corresponding establishments or destruction of things which have no value and can not be used,

- about their destruction, and in case of a petition of interested persons or establishments about giving them if it is money or other values acquired in criminal way,

- about their transfer to state income, concerning other things,

- about giving them to their legal owners, and if they are not identified - about their transfer to state property, in case of dispute about belonging of these things the public prosecutor specifies that dispute has to be solved as a civil trial with reference to the documents which are real evidence,

- About leaving them in a case for all period of case storage or about their transfer to their interested establishments.

Supporting the state accusation the public prosecutor in his speech makes suggestions on preventive punishment concerning the defendant before coming of a sentence into effect [3.45p.].

At discharge of the defendant or giving verdict of "guilty" without punishment, or with absolution from service of sentence, and also conviction to the punishment not connected with imprisonment, or putting on probation, the defendant who is under arrest must be immediately discharged in the room of judicial sitting.

The public prosecutor should consider especially carefully the question about change of restraint and imprisonment of the defendant who before giving a verdict of guilty has a preventive punishment not connected with arrest.

Referenses:

1. Procuracy supervision Republic of Kazakhstan: Tutorial // M.S. Narikbayev, G.K. Utebayev, M.M .Aliyev. // Astana. Adilet. 2005.

2. Law of the Republic of Kazakhstan "On Prosecutor's" from 21.12.1995.

3. Skill performance at the trial // G.A.Baymuratova, T.M.Aldanov, E.Zh.Zhumagaziev 2006.