Criminal Law Guidelines
1. Mission, Goal and Tasks of the Prosecutor's Office
General Prosecutor's Office of Georgia represents the agency of the Ministry of Justice of Georgia that supervises investigation and prosecutes defendants. Prosecutor shall take into the account Chapter Two of the Georgian Constitution, European Convention on Human Rights and other relevant laws when implementing his/her important mission.
Prosecutor's Office implements its functions in close cooperation and coordination with other governmental agencies in order to improve criminal justice system and to overcome internal as well as general-global challenges in the field of fight against crime;
Prosecutor's Office implements state function in accordance with the criminal law policy which is high quality criminal prosecution and which includes:
- present criminals in front of the judiciary;
- decrease of crime and elimination of fear of crime;
- decrease of social loses and economical expenses related to the crime;
- strengthen public trust towards the rule of law;
Prosecutor's Office shall constantly develop and raise the work quality and shall be guided with the following principles:
- The decisions of the prosecutor shall be in compliance with the law and non-discriminatory, prosecutor shall be objective and fair, and shall be self assure in the process of fight for justice;
- Prosecutors shall be open in relationship with each other as well as with the public. They shall show to the victim and witnesses that they care about the problem and shall treat all defendants fairly;
- Prosecutor's office is accountable to the public, prosecutors shall work with the colleagues in order to gain and maintain public trust and offer them the effective system of criminal justice;
- Prosecutor shall be kind and informed regarding the case circumstances when explaining his/her decision;
- It is necessary to work professionally, to be regularly accountable towards the public and adequate understanding of the criticism in order to achieve this high goals;
In addition Prosecutor's Office shall take into the account that:
- Each case is unique and shall be discussed based on the concrete facts and circumstances;
- Prosecutors' office shall be fair, independent and impartial. It is prohibited to act according to the personal opinion regarding the defendant, victim or witness, despite their race, skin color, language, gender, religious, political and other opinions and beliefs, national, ethnical and social belonging, origin, property or social status, place of residence. Prosecutor shall not be subject of illegal pressure or influence in any circumstances;
- Prosecutor shall establish that criminal prosecution proceeds correctly, that the crime is obvious and there are enough evidences to present charges against a concrete person;
- Prosecutor shall provide with the correct management of investigation and prosecution, by giving appropriate directives to the investigator; this also includes collection of additional evidences and definition of necessary direction for investigation. Prosecutor shall determine in timely manner to which case the special attention is required and the investigation of which case and/or criminal prosecution against a person shall be terminated;
- Prosecutor is obliged to review the case on investigative stage, in order to check that the correct qualification is selected, all evidences necessary to present to the court are collected and the process is organized in accordance with the law;
It is our goal to make prosecutor's office authoritative agency, which provides highly qualified service to the public;
This is the agency of professionals, where each employee is respected, which is developing permanently, has public trust and acts collegially with other agencies of the criminal justice system;
II. Guidelines for Criminal Prosecution
The role of the prosecutor in the criminal justice system is vital; prosecutors' office is an agency that plays key role in the protection of rule of law. Each decision of the prosecutor has impact not only on a defendant and other participants of the criminal justice system, but on entire society. Based on this, it is important that each decision of the Prosecutor shall be grounded, legal and shall represent the interests of state and public.
This document determines the guidelines and recommendations for criminal prosecution, based on which the prosecutor shall take a decision regarding the implementation of criminal prosecution within the frames of discretionary power.
The discretionary authority allows wide interpretation. Wrongly made decision might have impact on the rights and interests of a concrete person, as well as entire society. The goal of the recommendations is to put the wide discretionary authority of a prosecutor within the frames of general principles and standards, which will make decision making process more structural, consequent and transparent, will strengthen the principle of equality before the law and will support the establishment of common practice for use of discretionary power.
The independence of the decision making process by the prosecutor, individual approach towards each particular case and making fair decision shall not be limited in order not to put the flexibility and effectiveness of criminal justice system under the danger. This is why the guidelines are drafted in a form of general guiding principles;
The goal of the document is to guide the application and use of discretionary power in case of criminal prosecution. The document describes general principles and criteria that will support prosecutor to make fair and objective decision.
2. Main Functions, Goals and Guiding Principles of Prosecutor
a) Functions and tasks of the Prosecutor's Office
According to the Article 32 (Prosecutor's Office) of the Criminal Procedural Code of Georgia "The prosecution service is a body of criminal prosecution. In order to secure the fulfillment of this function, the prosecution service shall provide procedural guidance over investigation. In cases and according to the procedure set forth by this Code, the prosecutor's office shall: carry out full scale investigation of the crime. It shall represent state prosecution in the court".
General Prosecutor's Office of Georgia represents the state agency of the Ministry of Justice of Georgia that supervises the investigation process and criminal prosecution; the main state functions of the prosecutor's office are:
- implement criminal prosecution;
- support of state accusation on criminal case in the court;
- supervision during the investigation on precise and common implementation of law;
- full scale investigation in certain cases;
- coordination of fight against crime;
The goal of the Prosecutor's Office is to implement certain tasks in accordance with the general policy of criminal law. One of the main tasks of the prosecutor's work is to protect public from the crime; this task includes the criminal prosecution of a person who committed a crime and support of prevention of a crime;
Another important function of the prosecutors' office is to provide with effectiveness of justice, which can be achieved by the independent, consecutive and impartial work of the prosecutor. These tasks cannot be achieved without the protection of requirements determined by the law, relevant legal acts, professional or ethical norms.
In addition, strengthening of trust towards the rule of law and prosecutor in the public is the necessary condition for the effective functioning of criminal justice system. It is important that public believes in fairness and objectiveness of the prosecutor's work, which can only become possible by fair, correct and impartial decision making;
One of the most important tasks is strengthening legitimacy and order, protection of public order, protection of civil, political and personal rights and liberties of people from any violation;
b) The main principles of the work of prosecutor
Prosecutor, as the representative of the public office, shall protect the law, norms of professional ethic and general principles;
One of the most important principles of the prosecutor's work is the protection of human rights and freedoms guaranteed by the Constitution of Georgia. It is prohibited to express any discriminatory opinion or behavior or to abuse somebody's honor or dignity, because the tasks of the prosecutor include protection of legitimacy and order; he/she is obliged to protect the norms established by the law and ethics code;
Any decision or action of the prosecutor shall always serve public interests and protect them, shall respect the honor and dignity of a person and shall be guided by the presumption of innocence;
The independence, impartiality and fairness plays the key role during the implementation of professional work by the prosecutor; This principle is protected when each decision is based on complete and reasonable investigation of a case which is provided with the high quality professional abilities and skills of the prosecutor;
3. Discretionary Power of the Prosecutor in Criminal Prosecution
According to the Criminal procedural Code of Georgia, initiation and implementation of criminal prosecution is only the discretionary power of the prosecutor. The criminal prosecution shall not be commenced or terminated if it is against the criminal policy.
It is important to determine when and in which circumstances shall prosecutor make a decision regarding the implementation of criminal prosecution;
Criminal Prosecution shall be initiated, if:
a) criminal action is obvious;
b) evidences are collected, which are enough for grounded suspicion that crime has been committed by a concrete person;
Grounded suspicion - collection of facts or information, which together with circumstances of the criminal case would satisfy an objective person in order to conclude that a person, committed a crime, which is the standard of evidence which is required to be satisfied in order to commence criminal prosecution. This standard can be double checked by the means of evidentiary test.
Taking into the count the principle of discretionary prosecution, existence of these two circumstances does not mean the obligation of automatic or necessary initiation of criminal prosecution. But in addition non existence of these circumstances excludes the opportunity of initiation of prosecution.
During the implementation of discretionary authority prosecutor is guided by the law and the principles set in this document. In addition, the decision shall be based on the belief of a prosecutor and factual circumstances of the concrete case.
Prosecutor is authorized to make one of the following decisions if the unity of evidences collected during the investigation of criminal case are enough to satisfy grounded suspicion that a person committed a crime:
- to conduct or request additional investigation;
- to commence a criminal prosecution;
- to refuse initiation of prosecution and to use the alternative mechanisms of criminal prosecution;
- to refuse the initiation of a prosecution without the use of alternative mechanisms;
Prosecutor uses wide discretionary power during the decision making process regarding the initiation of criminal prosecution. But there are established circumstances that prosecutor shall apply during the decision making process. The most important is that prosecutor shall be objective and impartial during the decision making process and he/she shall not be influenced by subjective factors;
Prosecutor within the discretionary authority, taking into the account the established principles, shall decide according to his/her opinion how purposeful is the initiation of prosecution in a concrete case;
Prosecutor shall use the following two tests when making a decision on criminal prosecution: evidence and public interest test, which together makes complete test. Prosecutor shall start criminal prosecution in case of satisfaction of complete test. In addition both tests shall be evaluated and prosecutor shall be very careful.
The decision on initiation of criminal prosecution shall be made only in case of satisfaction of complete test; in particular, when:
a) evidences in the case establish enough ground for real perspective of defendant in the court - evidentiary test;
b) initiation of criminal prosecution is dictated by the public interest - public interest test;
Each stage of the complete test shall be reviewed independently from each other by the analysis of the case circumstances and evaluation and only later the decision shall be made regarding the initiation/non initiation or continuation of prosecution.
Above mentioned decisions shall be made by the prosecutor only in case when it is possible to analyze completely nature and gravity of committed crime and correct evaluation of public interest with regard to case. In case if prosecutor does not have enough information the investigation shall continue and relevant decision regarding the commencement of a criminal prosecution shall be made later.
a) Evidentiary Test
Prosecutor shall not start or shall terminate criminal prosecution if there is no reasonable doubt regarding the commission of a crime by a concrete person and/or there is less probability that court would approve the charges against a person.
It is also important to take into the account that it is not important for the prosecutor to have all evidences available that he/she is planning to use at the trial. It is enough for the prosecutor to be sure that at the court trial stage he/she will have evidences collected by legal means which will be enough to prove the charges against a person.
The real perspective of proving charges against a person shall be evaluated by the prosecutor according to the information available to him/her. Prosecutor shall take into the account the arguments of defense and what would be effect of this party on the argumentation of prosecution.
b) Public interest test
Based on the interests of judiciary, even when the evidentiary test is proved, prosecutor shall not start prosecution, if the initiation of prosecution is against the public interest;
The vital part of the discretionary authority of the Prosecutor is the determination, how the initiation of the prosecution complies with public interests. Prosecutor shall take into the account whether the public interest includes the initiation of prosecution and shall not initiate prosecution when public interest against the initiation of prosecution obviously overrides the interest to punish a person.
The public interest shall be determined by taking into the account different factors. Below is the main list of those circumstances that shall be taken into the account by the Prosecutor when making a decision. This list does not give exact formula of use of discretionary power, but taking into the account these factors and to analyze them in order to make correct decision is important. The decision to initiate prosecution in each concrete case shall be grounded on evaluation and conclusions of different individual factors.
Many different circumstances shall be taken into the account when making termination of public interest: a) legal priority of the state; b) character and gravity of the crime; c) preventive influence on criminal prosecution; d) quality of charges of a person; e) criminal record of the person; f) wish to cooperate with investigation; g) personal characteristics; h) possible punishment in case of proving charges and other results;
Above mentioned circumstances do not include complete list. In addition, it is not necessary to review all factors in each case, because the necessity of such review depends on the case circumstances;
1. Legal Priorities of the State
State resources are not enough to initiate criminal prosecution on all facts of crime. The priorities of criminal law police has been determined with the purpose to use effectively limited resources, which require special attention and reaction from the agencies of investigation and prosecution.
Prosecutor shall take into the account when determining the public interest whether it is priority for the state to initiate the criminal prosecution on a crime;
2. Character and gravity of the crime
The limited state resources shall be spent on the criminal prosecution of minor crimes. Based on this, prosecutor shall analyze the gravity and character of the crime and shall establish how relevant is the initiation of criminal prosecution on a concrete crime towards the public interest. When making a decision it is important to determine factual or potential impact that crime can have on a public or victim.
The impact of a crime on a public shall be evaluated based on different criteria. The damage can be material; criminal can be dangerous for public or violate public order.
It is possible that public can have negative reaction regarding the punishment of a concrete person, but this does not mean that the crime is minor based on other factors also. Prosecutor shall not make a decision taking into the account the public opinion. He/she shall take into the account the economical damage that public suffered, damages caused to a citizen or public property, quality of violation of order and other important circumstances. The public obligation and professional responsibility of the prosecutor requires making decisions that are not popular for the public.
Economical, physical and psychological factors shall be taken into account when evaluating impact on a victim. It is necessary to take into the account the age, health condition and other characteristics of a victim. It is also important to take into the account the factor of damage reimbursement, but it is required to be careful, in order not to establish wrong impression in the public that criminal avoids responsibility in exchange of damage reimbursement.
Despite the obligation of the prosecutor to protect public interest and not an individual person, he/she shall take into the account the interests of a victim and his/her family members when making a decision on initiation of prosecution.
3. Preventive impact of criminal prosecution
One of the main goals of criminal justice is the prevention of crime. Prosecutor shall take this into the account when making a decision, especially when dealing with a minor crime. It is possible that crime taken separately can be minor, but repeated commission of this crime might have a negative impact on a public which might make initiation of criminal prosecution important for crime prevention purposes. The prosecutor shall take into the account whether it is possible to achieve the goal of punishment without the criminal prosecution.
4. The quality of charges of a person
It is important to evaluate the quality of charges with regard to charges of other participants even when the prosecutor has enough evidences to prove the charges against a person. It is possible that prosecutor decides to refuse to initiate criminal prosecution based on the charges and motives of co participant in the crime. For instance, if the participation of a person in the crime is secondary and there are no other factors for initiation of a criminal prosecution present, the prosecutor is authorized not to initiate criminal prosecution.
5. Criminal record of a person
Prosecutor shall take into the account the criminal record of a person when deciding upon initiation of a criminal prosecution. If a person has past criminal record, or if there is reasonable doubt that he/she has committed a crime in the past than prosecutor shall establish the crime he/she has committed in the past and when did he commit a crime and what is the relation of this crime with the current concrete case. The same principle is used when there is no court decision against a person, he/she cooperates with the law enforcement institutions and other factors are also present and they indicate against the initiation of criminal prosecution.
6. Wish of a person to cooperate
The subjective attitude of a defendant, particularly his/her wish to cooperate with the investigation is one of the important circumstances. It is also important to take into the account the fact whether this person has cooperated with the law enforcement institutions in the past. The wish of a person to cooperate with the law enforcement institutions is not decisive. But in many cases the assistance of a person provided to the law enforcement institutions shall override the interest of criminal prosecution against him/her.
7. Personal characteristics
Personal characteristics are important when making decision on prosecution. For instance, based on age or his/her physical and psychological condition prosecutor might decide that it is not purposeful to initiate a criminal prosecution. For instance when a juvenile committed minor crime for the first time and based on the true interests of a juvenile it is not purposeful to initiate a criminal prosecution. When a person is public servant and misuses his/her power the initiation of a prosecution is vital.
8. Expected punishment
The prosecutor shall determine possible results of criminal prosecution, as well as the possible measures of punishment when evaluating the public interest. He shall also determine whether the time and resources necessary for the prosecution are in compliance with the interest to charge a person. If a person is already a defendant and serves his/her sentence, a prosecutor shall determine whether it is purposeful to bring new charges against him/her for a new crime. It shall be determined whether the new punishment will be more aggravating for a person or not. The preventive importance of initiation of a prosecution shall be taken into the account. Prosecutor shall take into the account that initiation of criminal prosecution might be necessary for an adequate description of a criminal past of a person. For instance, if person violated the conditions of bail, it is necessary to initiate criminal prosecution because in case of necessity the risk of imposing bail on this person shall be known for the law enforcement institutions.
As it was mentioned above there are determining factors the review of which is very important when evaluating the public interest. But there are other factors that do not have vital importance and impact on the decision regarding the initiation of criminal prosecution. This is the time and resources spend on investigation. Many resource spent during the investigation cannot become grounds for initiation of criminal prosecution, if the crime is obvious and criminal prosecution of which is not justified based on the public interest.
Circumstances that indicate the importance of criminal persecution:
a) the committed crime is wide spread in concrete region and has systematic character;
b) the especially grave crime has been committee - torture, inhuman or degrading treatment, organized crime in connection with the criminals, money laundering, human trafficking, crime committed by weapon or violence and etc;
c) criminal prosecution will have positive impact on the raise of public credibility and trust towards the judicial system;
d) the crime has been committed by a person serving the public (for instance juror or candidate of a juror, employee of emergency assistance, policemen, social worker, person working in the public transportation and etc);
e) the group crime has been committed;
f) The committed crime is related to the non obedience of court decision;
g) the crime is committed based on the discriminatory motive (race, skin color, language, age, gender, religious, political or other beliefs, national, ethnical and social belonging, origin, property and social condition, residence and other relevant circumstances) or when a person has enemy attitude towards a victim based on the above mentioned characteristics;
h) the crime was committed with the purpose of commission of another more grave crime;
i) a crime is committed towards a vulnerable person ( juvenile, pregnant woman, citizen of foreign country and etc)
Circumstances that indicate non importance of criminal prosecution:
a) the goal of punishment can be achieved without the criminal prosecution;
b) the damage is minor;
c) a person has reimbursed a victim the damage and loses (but criminal prosecution cannot be rejected only based on this factor)
d) the time frame between the crime commission and court hearing is big, except the cases if:
- crime is grave;
- delay was caused fully or partially by the accusation of a person;
- not long time has passed since the notification regarding the crime commission;
- the long term investigation was necessary due to the complexity of a crime;
- new investigative technique was used with the purpose of solving closed cases and the criminal was revealed based on this action;
- a person plays key role in the commission of a crime;
Listed principles and factors is not complete and the decision whether the prosecution serves the public interest shall be made for each particular case and its own characteristics.