Description of the functions

I. Opinions

The Procurator General's Office's field of responsibilities encompasses, first of all, the preparation of comments (known as ‘croquis’) on nullity appeals from decisions of criminal courts composed of judges and lay assessors and decisions in jury trials, on which the Supreme Court is required to render a decision at a public hearing. The Procurator General's Office also participates in the hearings before the Supreme Court, but is by no means required to adopt the prosecution’s point of view. Its function is that of supreme guardian of the application of the law, but it has no right of supervision or direction towards the public prosecution authorities, and therefore has no responsibility for the latter’s activities. If it expresses reservations on or even a rejection of the point of view of the public prosecutor before the Supreme Court, such a comment may not to be treated as the equivalent of a statement to the same effect by the Public Prosecutor's Office, and hence the latter’s appeal is by no means deemed to have been withdrawn. In cases in which the Procurator General considers a nullity appeal by the defendant to constitute a suitable case for settlement at an in camera session of the Supreme Court, it also submits an opinion to that effect.

 

II. Legal remedies

1. Nullity appeal to preserve the integrity of the law

However, the most important power of the Procurator General in terms of the rule of law is its power to file a nullity appeal from decisions of the criminal courts to preserve the integrity of the law, based on an infringement or an incorrect application of the law, and from any unlawful ruling or measure by a criminal court of which it acquires knowledge – in whatever manner (e.g. as a result of information from official or private entities or on the basis of its own knowledge). The main purpose of this appeal, which can only be lodged by the Procurator General and is not subject to any time limit, irrespective of whether the decision has become res judicata, is to ensure uniformity and correctness of the application of the law (the aim being to prevent the same kind of infringements of the law in future). At the same time, however, it also serves to re-establish justice in an individual case (exclusively) for the benefit of someone wrongly condemned, an accused wrongly disadvantaged by the criminal court in any other manner or for the benefit of a party to the proceedings in a comparable situation (this appeal can lead to a finding that there has been an unlawful acquittal or another unlawful act that benefits such a person, but this does not lead to the reversal of the decision).

However, it should be pointed out that this power of the Procurator General granted by Sec. 23 of the Code of Criminal Procedure does not permit the Procurator General to supervise the activities of the Public Prosecutor's Office. The Procurator General’s role is restricted to contesting errors of law, and not errors of fact with respect to a court’s ruling or measure.

An unlawful measure by a criminal court can also include an unlawful failure by the court to act or, under certain circumstances, a mere delay. Even unlawful grounds in support of a judgement that have no decisive effect on the decision can be made the subject-matter of a nullity appeal to preserve the integrity of the law.

2. Re-hearing of criminal proceedings

Where the European Court for Human Rights holds that a fundamental right granted by the European Convention on Human Rights has been infringed in a criminal case, then in cases in which it is not possible to rule out the possibility that the infringement had a negative effect on the substance of the criminal court decision with respect to the party concerned, the Procurator General (and the party affected by the infringement) is entitled, pursuant to Sec. 363 a of the Code of Criminal Procedure introduced by Federal Gazette 1996/762, to file an application with the Supreme Court for a re-hearing of the proceedings – including in cases in which a criticism is directed at the Supreme Court itself.

3. Extraordinary reopening of the case

Misjudgements in factual, not legal matters by the courts are not open to a challenge pursuant to Sec. 23 of the Code of Criminal Procedure; however, pursuant to Sec. 362 Para. 1 No. 2 of the Code, the Procurator General – and only he – can file an application for the criminal proceedings to be reopened as an extraordinary measure for the benefit of the person convicted, on the grounds of substantial reservations against the correctness of the facts on which the decision was based, as disclosed by the file.

III. Disciplinary proceedings

In addition, the Procurator General participates in disciplinary proceedings against judges, notaries, solicitor-advocates, solicitor-advocates in training and the members of the Administrative Court, and in proceedings to remove a member or substitute member of the Constitutional Court from office.

IV. Final comment

Even when performing the activities last mentioned, the Procurator General's Office does not act primarily as prosecutor but rather as the guardian of the law. Together with all public prosecutors, the Procurator General’s Office’s role is that which is emphasised in Sec. 1 Para. 1 of the Public Prosecutor's Office Act: the duty to safeguard the interests of the state (above all) in the administration of criminal justice. This state interest goes far beyond the mere enforcement of the state's interest in punishing criminal acts, and concerns the administration of justice in accordance with the law, thus including the protection of the rights of the individual, in particular the protection of basic constitutional rights.