With the advent of new millennium, the seriousness of crime and its effect towards mankind being seen by the passing decade seems to be even more severe in the coming era. Nobody could refuse the very fact that the trend of change in many aspects of society which occurred all around the world and currently bring about complexity and sophisticated dimensions of crime both in its natures and places of commission is on the verge of continuing to the next century. Seeking avenue to prevent and suppress future criminality is not so easy as we would like it to be. Effective measures for crime control and criminal justice of today may become at tomorrow only a history of once avhievement at some degree of global effort to maintain peace and order, unless the true spirit of collaboration among states to reduce, if not be capable to tally eradicate, differences in philosophy and practice in criminal justice and crime control is established and maintained. Regional cooperation for the more effective and common destination in this regard is, therefore, a fundamental criterior and meaningful strategy to be achieved of either in the Asia and Pacific region or other parts of the world.
Prosecution is an integral and inalienable component of the effective criminal justice administration. To prosecute an offender for the purpose of putting him under the punishment he deserves alone can encompass more than what could be exhustively described of prosecutorial responsibilities, let alone other functions entrusted by the laws and public. In performing of function, prosecutors must retain justice, efficiency, and integrity at the utmost of their professionalism. Facts must be duely obtained and sufficient to establish truth and merits of the case. Evidences must be trustworthy and admissible according to the general accepted rules of evidence. Public interests must be satisfactorily served if a prosecution or non-prosecution is called for. At the trial stage and after that until the finality, prosecutors are responsible to prove and enlighten the judges of what actually done by the accused under which an offence is allegedly committed. It is also the duty of the prosecutor to see that basic human rights of the victims, the suspects, witnessess, and those concerned in the cases are adequately recognized, especially as regards the vulnerable groups like the minor and the poor. Finally, criminal proceeding must be expedited and completed within a due time since the delay is tantamount to denial of justice and the prosecution is expected to be the public rule keeper for this front.
Given the current circumstances whereby prosecutors entertain a common objective to crack down the crime and maintain justice but their roles and functions are still varied and diverse from one country to another country, to what extent and manner should the prosecution be involved in criminal investigation, to what extent and for what rationale should they be granted discretionary power in cases disposition, and finally in what fields and to what extent should the prosecution be involved in international level? All these questions are the issues of particular interest not only at present but also in the next millennium, especially where the crimes of a complex or transnational nature are concerned.
Roles of Prosecutors in Criminal Investigation
To what extent should the prosecution involves in criminal investigation for the most effective performance of prosecutorial function is an issue of controversial not only among the prosecutors themselves, but other justice agencies as well. This issue becomes even particularly crucial at present when we take the phenomenon of the emergence of some modern crimes of complex nature into consideration. For the prosecutors, perhaps the most efficiency and desirable way to exercise their discretion as to prosecute the suspect or let him go is nothing more important than the ascertaining of truth. Prosecution of any system rely heavily on the correctness of facts and the proof thereof. Prosecutorial discretion should not be deviated from its merits because of the false or insufficient evidences. This is also true with regard to the legality in investigation to sustain the admissibility of witnesses at the trial. Judiciary in many countries take serious about the absolute legality in dealing with the cases at the pretrial stage; that is to say the gathering of facts and evidences regarding the crime to be dealt with by the authorities must not be contrary to the accepted standard of due process. Finally, delay of cases occurrs quite often because of too long process in investigation which results eventually in the delay of prosecutorial review and proceeding. The prosecutors are not just the postman who bring information of criminal incident from enquiry officials to the court and take no part in the play. They represent the state and public in handling the case, thus, should be vested with responsibilty to see that the entire process is properly done. How can the prosecutors perform good function if they are excluded from verifying of the case since its beginning?
Being aware of the crucial roles played by the prosecution to retain reality of criminal justice and effective crime control especially with regard to the rising trend of its transnational organized nature, many states grant prosecutos with authority and capacity to involve in investigation. The tendency of international community in this respect seems to move towards the same direction. This may be envisaged, for example, by the “Guidelines on the role of Prosecutors”, adopted by the United Nations Eight Crime Congress in 1990, whereby the prosecutors are encouraged to take an active role in criminal prosecution and proceedings, as well as investigation or supervision over its legality if possible according to the law or local practice. Another instrument is the “Standards of Professional Responsibilty and Statement of the Essential Duties and Rights of Prosecutors” recently adopted by the 4th General Conference of the International Association of the Prosecutors held in Beijing, during 5-9 September, 1999, whereby the involvement of prosecutors at all degrees in investigation is recognized. However, the rate of prosecutorial participation in fact finding and collecting nowadays still differs from jurisdiction to jurisdiction. In some countries like Japan, Korea, Germany, and the United States, the prosecutors seem to take leading role or absolutely control over the investigation. In other countries like the United Kingdom and most of the Commonwealth countries as well as Thailand, the opportunity of the prosecutors to take part in investigation seems to be rather remote.
In Thailand, investigation is viewed as separated matter from the prosecution, thus, carried out by other authorities not the prosecutors. According to the Criminal Procedure Code, investigation is conducted by the inquiry officials who are mainly the police. The authorities under some specific legislation such as the custom and the senior administrative officers under the Ministry of Interior also have power to conduct investigation but in certain categories of crime and within the areas of their particular jurisdiction whilst the police enjoys full investigatory power over all areas and offences. Thai prosecutors are not granted with power to initiate investigation nor institute the case themselves. They begin their function after receiving investigation files from the inquiry officials, thus, in one way or another be excluded from the process of facts finding and, therefore, has to rely only to what performed by the inquiry officials without opportunity to check or control the legality of the process since the outset.
The only channel to involve with the investigation is to instruct the inquiry officials to conduct an additional investigation if the prosecutors deem that the facts or evidences as appear in the file are not clear enough. However, the additional investigation will be conducted only to the scope corresponding to what already established in the original investigation not beyond that. Likewise, the prosecution will frequently face with some inconvenience to effectively conduct the proceeding, in particular where the record of the statement of the witness is totally or substantially different from what testified by the same witness before the court, or the record provides insufficient facts to convince the conviction of the offender.
Even more serious than the insufficiency or low quality of evidences is the distortion of truth or production of fake story by some unscrupulous inquiry officials. One sad incident did occurred in the history of Thai criminal justice in the Sherry Ann Duncan case some years ago. Sherry Ann Duncan, a young school girl, was mysteriously murdered by an unidentified group. The inquiry officials in this case intentionally produced the fake witnesses against the suspects which misled the prosecutor to prosecute and the court to impose death penalty. One suspect had died in the prison, the others severely suffered for a long time before the whole story was divulged. This unfortunate case may be the good example to explain the reason why the prosecutors should be intensively invoved in the investigation.
Role of prosecutors in the case disposition.
Prosecutorial role in regard to the case disposition may be the most impotant part of case handling at the pretrial stage since it affects rights and liberty of individual as well as renders a large scale impact towards the peacefulness and security of the society as a whole. Discretion of the prosecutors to prosecute or not prosecute the suspect may generate public confidence in criminal justice and security or totally destroy it. Yet, on what basis and to what extent should the discretion of the prosecutors be granted in the disposition of the case? Should the prosecutors be allowed to institue a non-prosecution if there is no irregularity in terms of evidences? Generally speaking, the prosecutors should prosecute the suspect upon the reliability and sufficiency of evidences which is a normal practice of the prosecution services under any system. However, when evidences are strong but prosecution of the suspect will not serve public interests or there exists some justification not to continue the case such as those related to the principle of human rights or public policy, should the prosecutors be required to prosecute the suspect? This is connected to the question whether the qualified evidences alone be treated as a sole and exhustive criterior for prosecutorial discretion which is still an unsettled issue. While in some countries only the defect or inadequacy of evidences is allowed to be the cause for non-prosecution, in other countries, there is no such constraint, and the prosecutors are free to dispose the case upon other grounds such as public interests, national security, etc.. The distinction in this regard may be stemmed from different views towards the roles and functions of the prosecutors between the principle of “legality” and “opportunity”. Under the legality principle, the prosecutors are viewed as the
government officers who have to strictly conform to the laws and regulations, if the case retains strong evidences against the suspect, then the prosecutors have no other option than to prosecute him to keep the sacredness of the laws. On the contrary, the opportunity principle seems to give more freedom to the prosecutors in exercising their discretionary power as to prosecute the offender or not. Under the opportunity principle, the prosecutors are deemed as the representatives of the public, thus have to maintain the standard of justice and fairness for not only the victims but also the suspect and all parties concerned, and above all for the public as a whole. If the setting up prosecution against the offender will not serve the public interests or contrary to public policy, then interests of the public will outweigh interests of an individual and the prosecutors should not institute the proceeding.
For the Thai position, perhaps the concept
of the opportunity principle prevails. The paosecutors in Thailand
are not forbidden to issue non-prosecution order on the grounds
of public interests, public safety and good moral, as well as
public policy, and so on. To this extent, it is also possible
for the prosecutors to refrain from instituting the case against
the offender or if it has been already instituted to withdraw
the cases from the court’s list. In
practice, sometime a formal Cabinet’s
resolution is required to justify the withdrawal of the case.
Frankly, speaking most of the Thai prosecutors take it for granted
that to maintain the effective criminal justice and to guarantee
a fair and good services, the prosecution should retain liberty
in performing of their functions. To restrict discretion of the
prosecutors as regards the causes and suitablity to prosecute
or not to prosecute is equal to indirectly devalue the merits
of prosecutorial dignity and independence which shall not be
allowed in every manner. However, independence in this sense
is, of course, should not and could not be regarded as an absolute
freedom without accountability at all. Prosecutorial discretion
in disposition of the cases under every system is in one way
or another be balanced or checked by some means either by internal
or external mechanism. In Thaialnd, for instance, the non-prosecution
order of all prosecutors except, the Attorney General will not
be automatically final. Such order is capable to be challanged
by the National Police Commander if it occurred in Bangkok, or
by the Provincial Governor in the provincial area. If there is
a challenge the case will be submitted to the Attorney General
for the final decision. Apart form the direct review by other
authorities, a final non-prosecution order of the prosecutors
may be indirectly challenged by the victims or the injured person
through a private prosection. This is because the power to institue
proceedings in Thailand is not monopolised by the Prosecutors.
According to the current Criminal Procedure Code, a private prosecution
is also possible, even after the non-prosecution order of the
prosecutors become final. Difficulty may arise in those countries
whose systems does not allow wide scope of prosecutorial discretion
or entirely or substantially control by other authorities such
as the police prosecution. How can these coutries deal with the
problems is an issue of particular interest and worth for discussion
at all time.
Role of prosecutors in international cooperation
Taking traditional criminal justice in consideration, the process may begin by the tracing of clues and gathering of evidences after the occurrence of crime. The next step is to arrest the suspect, put him under custody, taking statement out of him if he is willing to give it, enquire witnesses and preparing report of investigation, and unless the investigation is conducted by the prosecutor, to submit it together with the evidence by the enquiry official to the prosecutor for the screening of cases and institution of prosecution or dropping it and let the suspect goes. In case of prosecution, the prosecutor then resumes his function in the court throughout the whole process. However, when the case become more complex because it touches upon the component of internationalized character or involves with the matters of state
The situation illustrated here is not exhustive. There still exists many aspects and problems the difficulty of which is beyond the capacity of a single state to deal with especially under the current situation whereby many serious transnational organized crimes such as nacrotic trafficking, money laudering, transportation of illicit firearms, sexuality exploitation of women and children, computer fraud, financial crime, terrorism, and so on have been spread all over the world posing a great danger to every country. The tendency of today’s crime is likely to continue and become even more severe in the next millennium. To hault the transnational criminality, states must truly and concretely coordinate in prevention and supression it. Assistance and coordination between states to tackle the crime can take many forms and collectively known as “international cooperation”. And perhaps it would be possible to assert that international cooperation has emerged because of the necessity to resolve the problem of transnational crime and conflict of state’s jurisdiction over it. In broad sense, international cooperation encompasses every kind of activities regarding crime and justice, namely; mutual legal assisstance, extradition, transfer of proceedings and prisoners, as well as technical cooperation.
As for the prosecutors, is it suitable to involve in international cooperation, on what rationale, how far, and in what fields seems to be the most interesting topic to be discussed and defined of their position. Since the prosecutors under any systems assume the common task and responsibilty to control crime and maintain justice, their views towards the topic should not be too varied from each other. This is true either under the system where investigation is mainly conducted by the police and the prosecutors act as the connection between the police and the court or where the prosecutors themselves take leading role of criminal investigation. It is undeniable that prosecutorial function is inalienable from criminal justice no matter under which system it belongs, in what respect it is concerned, and at what level it is carried out -domestic or international. And because international cooperation is now widely recognised as indispensable part of international criminal justice, the involvement of prosecutors in international cooperation is, therefore, not only be considered as suitable,but also as somewhat definitely required. For the degree of invovement, the main responsibility of the prosecutor as to determine the case, screen the innocent from the offenders, and steer criminal proceeding in the court in all categories of offences including those with internationalized character should be taken into account. Like criminal justice in general, prosecutors should take the leading role in international cooperation mainstream because they are the conjunction between the executive and judiciary, thus, being the most appropriate mechanism to regulate rightfulness of the process as a whole. How can things be keeping well if the prosecutorial part is weak because the prosecutors are not adequately encouraged to take full charge of responsibility. The extent to which the prosecution should be involved in international cooperation is therefore at the full range.
With regard to the fields of international cooperation in which the prosecutors should be involved, it is not uncommon to assert that they are of all kinds. Since the prosecutors are the legal officials of states, they are in the position to supervise legality and due process of all categories of international cooperation. Nevertheless,the most conspicuous at present seems to fall within the areas of mutual legal assistance and extradition. This perhaps because the fundamental purpose of mutual legal assistance is to accord assistance by one state to a foreign state upon requested in the conduction of criminal cases at the pretrial stage whereby the prosecution plays an integral part. Assistance may include those forms as mentioned in “The United Nations Model treaty on Mutual Assistance in Criminal Mattrs”, namely:
All forms of assistance mentioned here are unarguably included within the process of facts and evidences collecting or the investigation which is the essential part for the effective prosecutorial function. In those countries where the prosecutors are vested with the authority to conduct, control, or supervise investigation the said activities are considered as directy involved with the prosecutors. In the countries where the prosecutors take no part in investigation, gathering of facts and evidences or the investigation conducted either within the country or abroad through the process of mutual legal assistance is anyhow involved also with the prosecutors because the prosecutors have to rely to such gathering for the disposition or prosecution the case. The involvement of the prosecutors in international cooperation in some country such as Thailand is even more apparent because according to the “Act on International cooperation in Criminal Matters B.E. 2535” the prosecutors, or the state attorneys as now called, take direct involvement and leading role in mutual legal assisance matters. Under the Act, the Attorney General is the Central Authority who entrusted by the law to be the center of all acitvities concerned as well as to determine and supervise for the proper functioning of the system.
For extradition which is international cooperation in terms of returning or submitting a fugitive or the alleged offender to a foreign state upon requested, the role of prosecutors is also expressly empahsized. Legality of the process is called for the prosecutors to supervise and regulate at the pre-judicial stage as well as to convince the judge after that. Not only various conditions such as double criminality, non-jeopardy, and prima facie, are required to establish the “extraditability” of the offence, an adequately recognized human rights of the requested person must also be satisfied as the component for due process of extradition. All these aspects are direct concerns of the prosecutors as the legal officials of the state to verify. They are, therefore, entrusted in many countries to assume the leading role in dealing with extradition. In Thailand, for instance, Section 143 of the Criminal Procedure Code clearly provides the prosecutors with the authority and function to request extradition from the foreign country where the offender is found, while the still drafting new “Exradition Act” is intended to define the Attorney General as the Central Authority of extradition matters.