Unity and diversity of the public prosecution services in Europe. A study of the Czech, Dutch, French and Polish systems Marguery, Tony Paul

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1 University of Groningen Unity and diversity of the public prosecution services in Europe. A study of the Czech, Dutch, French and Polish systems Marguery, Tony Paul IMPORTANT NOTE: You are advised to consult the publisher's version (publisher's PDF) if you wish to cite from it. Please check the document version below. Document Version Publisher's PDF, also known as Version of record Publication date: 2008 Link to publication in University of Groningen/UMCG research database Citation for published version (APA): Marguery, T. P. (2008). Unity and diversity of the public prosecution services in Europe. A study of the Czech, Dutch, French and Polish systems s.n. Copyright Other than for strictly personal use, it is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), unless the work is under an open content license (like Creative Commons). Take-down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Downloaded from the University of Groningen/UMCG research database (Pure): For technical reasons the number of authors shown on this cover page is limited to 10 maximum. Download date:

2 RIJKSUNIVERSITEIT GRONINGEN Unity and Diversity of the Public Prosecution Services in Europe A study of the Czech, Dutch, French and Polish systems Proefschrift ter verkrijging van het doctoraat in de Rechtsgeleerdheid aan de Rijksuniversiteit Groningen op gezag van de Rector Magnificus, dr. F. Zwarts, in het openbaar te verdedigen op donderdag 12 juni 2008 om uur door Tony Paul Marguery geboren op 18 december 1970 te Neuilly sur Seine, Frankrijk

3 Promotor: Prof. mr. G. Knigge Copromotor: Prof. mr. E.F. Stamhuis Beoordelingscommissie: Prof. mr. A. Prechal Prof. mr. F. Vellinga-Schootstra Prof. mr. B.F. Keulen ISBN:

4 To my brother,

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6 Nous avons aujourd hui une loi admirable, c est celle qui veut que le Prince, établi pour faire exécuter les lois, prépose un officier dans chaque tribunal pour poursuivre en son nom tous les crimes, de telle sorte que la fonction des délateurs est inconnue parmi nous. Montesquieu, De l esprit des lois, 1748, L. VI, Chap.*

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8 Table of Contents Table of Contents 1 Abbreviations 9 Research programme of the Research School of the Groningen Faculty of Law Incorporation and Adjustment Reception of Legal Transplants 10 Chapter 1 Introduction The central object, scope and general aim of the study The use of legal transplants in this study The context of Czech and Polish accession to the European Union Formulation of central questions Method 21 Chapter 2 Origins of the public prosecution services in continental law systems French royal judicial system of the Ancien Régime Lower courts The parlements Birth of the prosecution service Non-Roman origins of the public ministry Functional birth of the public ministry Organisation of the public ministry of the Ancien Régime Structure of the public ministry of the Ancien Régime The recruitment of gens du roi, rewards of office and subordination to the king Position of the gens du roi in the judicial system Tasks and functions of the public ministry during the Ancien Régime Defence of the interests of the king The defence of the interests of society by a public ministry Important developments in the French judicial system through the Revolution until the Napoleonic reforms 49

9 2.6 The public ministry through the Revolution up to the Napoleonic reforms A State institution A hierarchical and pyramidal institution A function in the criminal process Epilogue 49 Chapter 3 France organisation of the prosecution service and its functions in the criminal process Historical developments Provisions concerning judicial power in the 1958 Constitution The structural and functional position of the prosecution service in the State organisation The present French criminal courts system First instance Appeal level Supreme Court Types of judicial decisions Organisation of the French PPS Structure of the public ministry Subordination Limits to subordination Other rights and duties of French prosecutors Criminal and disciplinary responsibility of prosecutors The functions of the French PPS in the preliminary phase of the criminal process Functions in fields other than the criminal process General principles concerning the preliminary proceedings of the criminal process The role of the French prosecution service in the preparatory criminal proceedings The role of the French prosecution service in the supervision of the preliminary proceedings The role of the French PPS after the preliminary proceedings Preliminary verifications First instance hearing Position of the public prosecutor in the ordinary

10 3.5.4 Position of the public prosecutor in the extraordinary Chapter 4 The Netherlands organisation of the prosecution service and its functions in the criminal process Historical developments The 1811 transplantation of the French judicial organisation into the Dutch system and the 1827 Act on judicial organisation The position the prosecution service in the State organisation in the 1827 Act The current Dutch criminal judicial system The first instance Appellate courts and the Supreme Court Types of decisions Organisation of the Dutch PPS The structure of the prosecution service Distribution of competences within the prosecution service and the principle of substitution Subordination Limits to the subordination Other rights and duties of Dutch prosecutors Criminal and disciplinary responsibility of prosecutors The functions of the Dutch PPS in the preliminary phase of the criminal process Functions outside the preliminary phase of the criminal process General principles concerning the preliminary proceedings of the criminal process The role of the Dutch prosecution service in the pre-trial stage The role of the Dutch prosecution service in the supervision of the preliminary proceedings The role of the Dutch PPS after the preliminary phase of the criminal process Preliminary verifications First instance hearing and participation of the prosecutor therein Position of the public prosecutor in the ordinary

11 4.5.4 Position of the public prosecutor in the extraordinary Chapter 5 Poland ( ) the Communist organisation and functions of the Prokuratura in the criminal process The political structure in Poland after the Second World War Basic historical developments in politics and constitutions The shape of the governing bodies the Sejm, the Council of State and the Council of Ministers The People s Councils The criminal judicial organisation of the Polish People s Republic Socialist Legality and changes in the Criminal Procedure Code and the Criminal Code Organs and institutions of the judicial system of Communist Poland Organisation of the Polish Prokuratura The laws of the Prokuratura The structure of the Polish Communist Prokuratura Subordination Supervisory functions of the Polish Prokuratura Provisions common to general and judicial supervision General supervision Judicial supervision The role of the Polish Prokuratura in the preliminary phase of the criminal process The role of the Polish Prokuratura in preparatory proceedings The role of the Polish Prokuratura in the supervision of the preparatory proceedings The role of the Polish Prokuratura after the preliminary phase of the criminal process The position of public prosecutors in the first instance The position of public prosecutors in ordinary

12 5.6.3 The position of public prosecutors in extraordinary Chapter 6 Poland the current organisation and functions of the prosecution service in the criminal process Major changes affecting the Polish PPS in the Constitution of Poland and in the Prokuratura Act The current Polish criminal justice system The first instance The appeal and the Supreme Court level Types of decisions The organisation of the current Polish PPS The designation of the prosecution in the Soviet statute, in the 1985 Act and in the Criminal Procedure Code The Minister of Justice/general prosecutor and the administration of the public prosecutors offices The structure of the Polish prosecution service The appointment and subordination of public prosecutors Limits to subordination Other rights and duties of Polish prosecutors The discipline and criminal responsibility of prosecutors Functions of the Polish prosecution service in the preliminary phase of the criminal process Functions in fields other than the criminal process General principles concerning preliminary proceedings in the criminal process The role of the Polish prosecution service in preparatory criminal proceedings The role of the Polish prosecution service in the supervision of preliminary proceedings The role of the Polish public prosecutor after the pre-trial phase of the criminal process The position of the public prosecutor in the first instance The position of public prosecutor in ordinary forms of review The position of public prosecutors in extraordinary

13 Chapter 7 Czechoslovakia ( ) the Communist organisation of the Prokuratura and its functions in the criminal process The political structure in Czechoslovakia after the Second World War Basic historical developments The governing apparatus from 1948 to The governing apparatus from 1960 to The local level The criminal justice system in Communist Czechoslovakia The system until Important changes in the Constitution and in criminal procedure and criminal law The organs and institutions of the judicial system of Communist Czechoslovakia The organisation of the Czechoslovakian Communist Prokuratura The laws on the Prokuratura The structure of the Czechoslovakian Communist Prokuratura in the 60/1965 Act as amended in Appointment and discipline of prosecutors, and relationships of subordination between them The supervisory functions of the Czechoslovakian Communist Prokuratura Provisions common to general and judicial supervision General supervision Judicial supervision The role of the Czechoslovakian Communist Prokuratura in the preliminary phase of the criminal process The role of the Czechoslovakian Communist Prokuratura in preparatory criminal proceedings The role of the Czechoslovakian Communist Prokuratura in the supervision of preparatory proceedings The role of the Czechoslovakian Communist Prokuratura after the preliminary phase of the criminal process The position of the public prosecutor in the first instance The position of public prosecutor in the ordinary

14 7.6.3 The position of public prosecutors in extraordinary Chapter 8 The Czech Republic the current organisation and functions of the prosecution service in the criminal process Major changes brought into the Constitution regarding the prosecution service of the Czech Republic and the new prosecution service Act The current Czech criminal justice system The first instance The appeal level and the Supreme Court Types of decisions The organisation of the current Czech PPS The designation of the prosecution service in the 1993 Act and in the Criminal Procedure Code The Minister of Justice and the administration of the public prosecutors offices The structure of the Czech prosecution service Appointment and subordination of public prosecutors Limits to subordination Other rights and duties and the independence of Czech prosecutors Discipline of prosecutors and penal responsibility Functions of the Czech PPS in the preliminary phase of the criminal process General principles of the preliminary proceedings of the criminal process The role of the Czech prosecution service in preinvestigations and preparatory criminal investigations The role of the Czech prosecution service in the supervision of preliminary proceedings The role of the Czech PPS after the preliminary phase of the criminal process The position of the public prosecutor in the first instance The position of the public prosecutor in ordinary The position of the public prosecutor in extraordinary

15 Chapter 9 Comparisons of the organisation of the prosecution services and their functions in the criminal process The place of the prosecution service within the State The position of the PPS in the repartition of State powers and the task of the prosecution service Influence of the executive on the prosecution service The structure of the prosecution service The structure and heads of the offices Appointment and responsibility of public prosecutors Relationships within the service Indivisibility, unity, hierarchy and substitution the principles in the functioning of the PPS The obligation to carry out the instructions of superiors and the limits of subordination The role of the prosecution service in preparatory criminal proceedings and in Uncovering the facts, starting and carrying out criminal preliminary proceedings the prosecutor s role Concluding preliminary proceedings The rights of the prosecution service in Chapter 10 Concluding remarks Converging trends A test for a democratically efficient prosecution service in the Member States of the European Union 49 Résumé 49 Samenvatting 49 Bibliography 49